Proposal for a COUNCIL DECISION amending Decision (EU) 2023/133 appointing the members of the selection panel provided for in Article 14(3) of Regulation (EU) 2017/1939
Date: 2024-05-27
Institutions: Directorate-General for Justice and Consumers, 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, 27.5.2024  COM(2024) 215 final 2024/0118 (NLE)  Proposal for a COUNCIL DECISION amending Decision (EU) 2023/133 appointing the members of the selection panel provided for in Article 14(3) of Regulation (EU) 2017/1939  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

(EU)  2017/1939 

implementing  enhanced  cooperation  on 

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  20171.  The  EPPO  assumed  the 
investigative and prosecutorial tasks conferred on it by such Regulation on 1 June 2021. The 
EPPO is responsible for investigating, prosecuting and bringing to judgment the perpetrators 
of, and accomplices to,  criminal offences affecting the  Union’s financial interests which are 
provided for in Directive (EU) 2017/13712, as implemented into national law, and determined 
by Regulation (EU) 2017/1939. 

In  accordance  with  Article  8  of  Regulation  (EU)  2017/1939,  the  EPPO  is  organised  at  a 
central  and  at  a  decentralised  level.  The  European  Chief  Prosecutor  and  the  European 
Prosecutors  –  one  per  Member  State  participating  in  the  enhanced  cooperation  on  the 
establishment of the EPPO – are part of the central level of the EPPO and form the College of 
the EPPO. The European Parliament and the Council  appointed by common accord the first 
European  Chief  Prosecutor  in  October  20193.  The  Council  appointed  the  first  22  European 
Prosecutors of the EPPO in July 2020. 

The mandate of the European Chief Prosecutor is of seven years and is not renewable (Article 
14(1)  of  Regulation  (EU)  2017/1939).  The  mandate  of  the  European  Prosecutors  is  of  six 
years and the Council may decide to extend it for a maximum of three years (Article 16(3) of 
Regulation (EU) 2017/1939). Article 16(4) of Regulation (EU) 2017/1939 provides that every 
three years there should be a partial replacement of one third of the European Prosecutors and 
requires  the  Council  to  adopt  transitional  rules  for  the  appointment  of  the  European 
Prosecutors  for  and  during  the  first  mandate  period.  On  this  basis,  the  Council  adopted 
Council  Implementing  Decision  (EU)  2019/598  of  9  April  2019,  which  provides  that  the 
mandate of the European Prosecutors from eight Member States, determined by drawing lots, 
should  be  of  three  years  and  should  not  be  renewable.  The  mandate  of  these  European 
Prosecutors thus expired in July 2023.  

Article 14(3) of Regulation (EU) 2017/1939 provides that the selection of the European Chief 
Prosecutor  should  be  based  on  an  open  call  for  candidates,  to  be  published  in  the  Official 
Journal of the European Union, following which a selection panel should draw up a shortlist 
of qualified candidates to be submitted to the European Parliament and to the Council. Article 
16(2) of Regulation (EU) 2017/1939 provides that the Council should select and appoint one 
of the candidates nominated by the Member States for the post of European Prosecutors after 
having received the reasoned opinion of the selection panel referred to in Article 14(3) of the 
same Regulation.  

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Council  Regulation  (EU)  2017/1939  of  12  October  2017  implementing  enhanced  cooperation  on  the 
establishment of the European Public Prosecutor’s Office (‘the EPPO’) OJ L 283, 31.10.2017, p. 1–71. 
Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight 
against fraud to the Union’s financial interests by means of criminal law, OJ L 198, 28.7.2017, p. 29–
41. 
Decision  (EU)  2019/1798  of  the  European  Parliament  and  of  the  Council  of  23  October  2019 
appointing  the  European  Chief  Prosecutor  of  the  European  Public  Prosecutor’s  Office,  OJ  L  274, 
28.10.2019, p. 1–2. 

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In accordance with the latter provision, the selection panel should comprise 12 persons, to be 
appointed  by  the  Council  on  a  proposal  from  the  Commission,  chosen  from  among  former 
members  of  the  Court  of  Justice  and  the  Court  of  Auditors,  former  national  members  of 
Eurojust,  members  of  national  supreme  courts,  high  level  prosecutors  and  lawyers  of 
recognised  competence.  One  of  the  persons  chosen  should  be  proposed  by  the  European 
Parliament.  

The  12  members  of  the  first  selection  panel  were  appointed  by  the  Council,  on  a  proposal 
from the Commission, in October 20184, while the 12 members of the current selection panel 
were appointed in January 2023 for a period of four years from 20 January 20235. Mr Marin 
MRČELA, Justice of the Supreme Court of the Republic of Croatia, was one of the members 
of the selection panel appointed in January 2023. On 8 April 2024, Mr  MRČELA informed 
the European Commission that he could no longer serve as member of the selection panel and 
therefore decided to resign. The Council was informed accordingly.  

To  ensure  the  continuity  of  the  selection  panel,  Mr  MRČELA  should  be  replaced.  In 
accordance  with  the  operating  rules  of  the  selection  panel6,  his  replacement  should  be 
appointed  for  the  remainder  of  Mr  MRČELA’s  term  of  office  (i.e.,  until  20  January  2027). 
With  the  present  proposal,  the  Commission  therefore  proposes  the  Council  to  appoint  Mr 
Dražen JELENIĆ, Deputy State Attorney General of  the Republic of Croatia, as member of 
the  selection  panel  in  replacement  of  Mr  MRČELA.  Mr  Dražen  JELENIĆ  meets  the 
requirements  set  out  in  Article  14(3)  of  Regulation  (EU)  2017/1939.  In  proposing  his 
appointment,  the  Commission  took  into  account  the  need  to  ensure  balance  in  terms  of 
geographical  distribution,  gender,  and  knowledge  of  legal  systems  of  the  Member  States 
participating in the EPPO. 

• 

Consistency with existing policy provisions in the policy area 

The EPPO was established by means of Regulation (EU) 2017/1939, which was adopted on the 
basis  of  Article  86  TFEU.  The  EPPO  has  been  exercising  the  functions  attributed  to  it  by 
Regulation  (EU)  2017/1939  since  1  June  2021.  By  submitting  this  proposal  for  a  Council 
Decision  on  the  replacement  of  one  of  the  current  members  of  the  selection  panel,  the 
Commission is complying with its obligation under Article 14(3) of Regulation (EU) 2017/1939. 
This  proposal  allows  for  the  replacement  of  one  member  of  the  current  selection  panel,  whose 
mandate  is  due  to  expire  on  20  January  2027.  The  full  functioning  of  the  selection  panel  is 
important to allow for the orderly finalisation of the procedures to select and appoint the European 
Prosecutor  from  Poland7  as  well  as  the  European  Prosecutors  who  will  have  to  be  replaced  in 
2026 and the new European Chief Prosecutor, who will also have to be appointed in 2026.  

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Council Decision (EU) 2018/1275 of 18 September 2018 appointing the members of the selection panel 
provided for in Article 14(3) of Regulation (EU) 2017/1939, OJ L 238, 21.9.2018, p. 92–93. 
Council  Decision  (EU)  2023/133  of  17  January  2023  appointing  the  members  of  the  selection  panel 
provided for in Article 14(3) of Regulation (EU) 2017/1939, OJ L 17, 19.1.2023, p. 90–91. 
Council Implementing Decision (EU) 2018/1696 of 13 July 2018 on the operating rules of the selection 
panel provided for in Article 14(3) of Regulation (EU) 2017/1939 implementing enhanced cooperation 
on the establishment of the European Public Prosecutor’s Office (‘the EPPO’), OJ L 282, 12.11.2018, p. 
8–12. 
Poland  joined  the  enhanced  cooperation  on  the  establishment  of  the  EPPO  in  February  2024 
(Commission Decision (EU) 2024/807 of 29 February 2024 confirming the participation of Poland in 
the  enhanced  cooperation  on  the  establishment  of  the  European  Public  Prosecutor’s  Office,  OJ  L, 
2024/807,  29.2.204).  The  European  Prosecutor  from  Poland  should  thus  be  appointed.  Furthermore, 
Sweden is likely to notify the Commission of its intention to join the enhanced cooperation soon.  

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• 

Consistency with other Union policies 

This proposal is consistent with other Union policies 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 14(3) of Regulation (EU) 2017/1939. 

• 

Subsidiarity (for non-exclusive competence)  

The  appointment  of  members  of  the  selection  panel  provided  for  in  Article  14(3)  of 
Regulation  (EU)  2017/1939  can  only  be  decided  by  the  Council,  on  the  basis  of  a 
Commission proposal, and is thus an exclusive competence by nature, which is 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 essential in ensuring 
that the European Chief Prosecutor and the European Prosecutors can be replaced at the end 
of  their  mandate,  and  that  the  European  Prosecutors  from  the  Member  States  that  have 
recently joined or will soon join the enhanced cooperation on the EPPO are appointed, thus 
ensuring full deployment and continuity of the operational activities of the EPPO. 

• 

Choice of the instrument 

Article  14(3)  of  Regulation  (EU)  2017/1939  provides  that  the  Council  is  to  adopt  a  decision 
appointing the members of the selection panel on a proposal from the Commission. Rule II of the 
operating rules of the selection panel further provides that a person who is to replace a member of 
the  selection  panel  should  be  appointed  for  the  remainder  of  the  predecessor’s  term  of  office 
following the same procedure. The choice of the proposed instrument is therefore required by the 
existing legislation on the matter. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Given  the  technical  nature  of  this  proposal  and  the  absence  of  discretion  on  the  Commission, 
which is complying with the obligation set out in Article 14(3) of Regulation (EU) 2017/1939, 
ex-post evaluations, stakeholder consultations and impact assessments were not carried out. 

4. 
BUDGETARY IMPLICATIONS 
This 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 plans and monitoring 
nor for evaluation and reporting arrangements. 

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• 

Detailed explanation of the specific provisions of the proposal 

Article 1 provides that the Mr Dražen JELENIĆ replaces Mr Marin MRČELA as member of the 
selection panel provided for in Article 14(3) of Regulation (EU) 2017/1939. 

Article 2 provides for the entry into force of the Decision.  

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2024/0118 (NLE) 

Proposal for a 

COUNCIL DECISION 

amending Decision (EU) 2023/133 appointing the members of the selection panel 
provided for in Article 14(3) of 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 Article 14(3) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  European  Chief  Prosecutor  is  appointed  by  common  accord  of  the  European 
Parliament and the Council from among a shortlist of qualified candidates drawn up 
by the selection panel provided for in Article 14(3) of Regulation (EU) 2017/1939. 
The European Prosecutors are appointed by the Council from amongst three qualified 
candidates  nominated  by  each  Member  State  after  having  received  a  reasoned 
opinion from that selection panel.  

The current members of the selection panel were appointed for a period of four years 
from 20 January 2023, by means of Council Decision (EU) 2023/1332. 

Mr Marin MRČELA is currently a member of the selection panel. On 8 April 2024, 
Mr MRČELA informed the Commission that he could no longer serve as a member 
of the selection panel and had therefore decided to resign. The Council was informed 
accordingly. 

A  new  member  of  the  selection  panel  should  be  appointed  as  soon  as  possible  to 
replace  Mr  MRČELA,  in  order  to  ensure  the  continuity  of  the  selection  panel’s 
activities.  Mr  Dražen  JELENIĆ,  Deputy  State  Attorney  General  of  the  Republic  of 
Croatia,  should  therefore  be  appointed  as  a  new  member  of  the  selection  panel.  In 
proposing this person, the Commission took into account the need for geographical 
balance, gender balance and due representation of the legal systems of the Member 
States participating in the enhanced cooperation on the establishment of the EPPO. 

(5) 

In accordance with Rule II of the operating rules of the selection panel set out in the 
Annex to Council Implementing Decision (EU) 2018/16963, Mr JELENIĆ should be 
appointed for the remainder of his predecessor’s term of office. 

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OJ L 283, 31.10.2017, p. 1, ELI: http://data.europa.eu/eli/reg/2017/1939/oj. 
Council  Decision  (EU)  2023/133  of  17  January  2023  appointing  the  members  of  the  selection  panel 
provided  for  in  Article  14(3)  of  Regulation  (EU)  2017/1939  (OJ  L  17,  19.1.2023,  p.  90,  ELI: 
http://data.europa.eu/eli/dec/2023/133/oj). 
Council Implementing Decision (EU) 2018/1696 of 13 July 2018 on the operating rules of the selection 
panel provided for in Article 14(3) of Regulation (EU) 2017/1939 implementing enhanced cooperation 

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(6) 

(7) 

Decision (EU) 2023/133 should therefore be amended accordingly. 

In  order  to  ensure  that  Mr  JELENIĆ  can  immediately  take  up  his  functions  and 
participate in the ongoing activities of the selection panel, this Decision should enter 
into force on the day  following that of its publication in the Official Journal of the 
European Union, 

HAS ADOPTED THIS DECISION:  

In Article 1 of Decision (EU) 2023/133, the name ‘Mr Marin MRČELA’ is replaced by the 
name ‘Mr Dražen JELENIĆ’. 

Article 1 

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 

on the establishment of the European Public Prosecutor's Office (‘the EPPO’) (OJ L 282, 12.11.2018, p. 
8, ELI: http://data.europa.eu/eli/dec_impl/2018/1696/oj). 

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