Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’)

CHAPTER I

SUBJECT MATTER AND DEFINITIONS

Article 1

Subject matter

This Regulation establishes the European Public Prosecutor’s Office (‘the EPPO’) and sets out rules concerning its functioning.

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1) ‘Member State’ means, except where otherwise indicated, in particular in Chapter VIII, a Member State which participates in enhanced cooperation on the establishment of the EPPO, as deemed to be authorised in accordance with the third subparagraph of Article 86(1) TFEU, or by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) TFEU;

(2) ‘person’ means any natural or legal person;

(3) ‘financial interests of the Union’ means all revenues, expenditures and assets covered by, acquired through, or due to the Union budget and the budgets of the institutions, bodies, offices and agencies established under the Treaties and budgets managed and monitored by them;

(4) ‘staff of the EPPO’ means the personnel at the central level who supports the College, the Permanent Chambers, the European Chief Prosecutor, the European Prosecutors, the European Delegated Prosecutors and the Administrative Director in the day-to-day activities in the performance of the tasks of this Office under this Regulation;

(5) ‘handling European Delegated Prosecutor’ means a European Delegated Prosecutor responsible for the investigations and prosecutions, which he/she has initiated, which have been allocated to him/her or which he/she has taken over using the right of evocation according to Article 27;

(6) ‘assisting European Delegated Prosecutor’ means a European Delegated Prosecutor located in a Member State, other than the Member State of the handling European Delegated Prosecutor, where an investigation or other measure assigned to him/her is to be carried out;

(7) ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

(8) ‘processing’ means any operation or set of operations which are performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

(9) ‘restriction of processing’ means the marking of stored personal data with the aim of limiting their processing in the future;

(10) ‘profiling’ means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements;

(11) ‘pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person;

(12) ‘filing system’ means any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographical basis;

(13) ‘controller’ means the EPPO or another competent authority which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union law or the law of a Member State of the European Union, the controller or the specific criteria for its nomination may be provided for by Union law or the law of a Member State of the European Union;

(14) ‘processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller;

(15) ‘recipient’ means a natural or legal person, public authority, agency or any other body to which the personal data are disclosed, whether a third party or not. However, Member States of the European Unions’ public authorities other than competent authorities defined in point 7(a) of Article 3 of Directive (EU) 2016/680, which receive personal data in the framework of a particular inquiry of the EPPO shall not be regarded as recipients; the processing of those data by those public authorities shall be in compliance with the applicable data protection rules according to the purposes of the processing;

(16) ‘personal data breach’ means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;

(17) ‘administrative personal data’ means all personal data processed by the EPPO apart from operational personal data;

(18) ‘operational personal data’ means all personal data processed by the EPPO for the purposes laid down in Article 49;

(19) ‘genetic data’ means personal data relating to the inherited or acquired genetic characteristics of a natural person which give unique information about the physiology or the health of that natural person and which result, in particular, from an analysis of a biological sample from the natural person in question;

(20) ‘biometric data’ means personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data;

(21) ‘data concerning health’ means personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his/her health status;

(22) ‘supervisory authority’ means an independent public authority which is established by a Member State of the European Union pursuant to Article 51 of Regulation (EU) 2016/679 of the European Parliament and of the Council (¹) or pursuant to Article 41 of Directive (EU) 2016/680;

(23) ‘international organisation’ means an organisation and its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries.

CHAPTER II

ESTABLISHMENT, TASKS AND BASIC PRINCIPLES OF THE EPPO

Article 3

Establishment

Article 4

Tasks

The EPPO shall be responsible for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices to, criminal offences affecting the financial interests of the Union which are provided for in Directive (EU) 2017/1371 and determined by this Regulation. In that respect the EPPO shall undertake investigations, and carry out acts of prosecution and exercise the functions of prosecutor in the competent courts of the Member States, until the case has been finally disposed of.

Article 5

Basic principles of the activities

Article 6

Independence and accountability

Article 7

Reporting

CHAPTER III

STATUS, STRUCTURE AND ORGANISATION OF THE EPPO

SECTION 1

Status and structure of the EPPO

Article 8

Structure of the EPPO

Article 9

The College

Article 10

The Permanent Chambers

The internal rules of procedure of the EPPO shall ensure an equal distribution of workload on the basis of a system of random allocation of cases and shall, in exceptional cases, establish procedures, where necessary for the proper functioning of the EPPO, to allow the European Chief Prosecutor to decide to deviate from the principle of random allocation.

In accordance with the conditions and procedures set out by this Regulation, where applicable after reviewing a draft decision proposed by the handling European Delegated Prosecutor, the Permanent Chambers shall decide on the following issues:

(a) to bring a case to judgment in accordance with Article 36(1), (3) and (4);

(b) to dismiss a case in accordance with point (a) to (g) of Article 39(1);

(c) to apply a simplified prosecution procedure and to instruct the European Delegated Prosecutor to act with a view to finally dispose of the case in accordance with Article 40;

(d) to refer a case to the national authorities in accordance with Article 34(1), (2), (3) or (6);

(e) to reopen an investigation in accordance with Article 39(2).

Where necessary, the Permanent Chambers shall take the following decisions, in accordance with the conditions and procedures set out in this Regulation:

(a) to instruct the European Delegated Prosecutor to initiate an investigation in accordance with the rules in Article 26(1) to (4) where no investigation has been initiated;

(b) to instruct the European Delegated Prosecutor to exercise the right of evocation in accordance with Article 27(6) where the case has not been evoked;

(c) to refer to the College strategic matters or general issues arising from individual cases in accordance with Article 9(2);

(d) to allocate a case in accordance with Article 26(3);

(e) to reallocate a case in accordance with Article 26(5) or 28(3);

(f) to approve the decision of a European Prosecutor to conduct the investigation himself or herself in accordance with Article 28(4).

All case material shall be accessible upon request to the competent Permanent Chamber for the purpose of preparing decisions.

The Permanent Chamber shall inform the European Chief Prosecutor of any decision to delegate their decision-making power. On reception of that information, the European Chief Prosecutor may within 3 days request the Permanent Chamber to review its decision if the European Chief Prosecutor considers that the interest to ensure the coherence of the investigations and prosecutions of the EPPO so requires. If the European Chief Prosecutor is a Member of the relevant Permanent Chamber, one of the Deputy European Chief Prosecutors shall exercise the right to request the said review. The supervising European Prosecutor shall report to the Permanent Chamber about the final disposal of the case as well as any information or circumstance he/she deems to be likely to necessitate a new assessment of the opportunity to maintain the delegation, in particular in circumstances referred to in Article 36(3).

The decision to delegate decision-making power may be withdrawn at any time on the request of one of the Members of the Permanent Chamber and shall be decided in accordance with paragraph 6 of this Article. A delegation shall be withdrawn when a European Delegated Prosecutor has substituted the European Prosecutor in accordance with Article 16(7).

To ensure coherent application of the principle of delegation, each Permanent Chamber shall report annually to the College on the use of delegation.

All decisions taken and instructions given in accordance with paragraphs 3, 4, 5 and 7 shall be recorded in writing and become part of the case file.

A Permanent Chamber may also, either at the request of a European Prosecutor or a European Delegated Prosecutor or on its own initiative, invite other European Prosecutors or European Delegated Prosecutors who are concerned by a case to attend its meetings without a right to vote.

Article 11

The European Chief Prosecutor and the Deputy European Chief Prosecutors

Article 12

The European Prosecutors

The internal rules of procedure of the EPPO shall, without prejudice to Article 16(7), provide for a mechanism of substitution between European Prosecutors where the supervising European Prosecutor is temporarily absent from his/her duties or is for other reasons not available to carry out the functions of the European Prosecutors. The substitute European Prosecutor may fulfil any function of a European Prosecutor, except the possibility to conduct an investigation provided for in Article 28(4).

Article 13

The European Delegated Prosecutors

The European Delegated Prosecutors shall be responsible for those investigations and prosecutions that they have initiated, that have been allocated to them or that they have taken over using their right of evocation. The European Delegated Prosecutors shall follow the direction and instructions of the Permanent Chamber in charge of a case as well as the instructions from the supervising European Prosecutor.

The European Delegated Prosecutors shall also be responsible for bringing a case to judgment, in particular have the power to present trial pleas, participate in taking evidence and exercise the available remedies in accordance with national law.

SECTION 2

Appointment and dismissal of the members of the EPPO

Article 14

Appointment and dismissal of the European Chief Prosecutor

The European Chief Prosecutor shall be selected from among candidates:

(a) who are active members of the public prosecution service or judiciary of the Member States, or active European Prosecutors;

(b) whose independence is beyond doubt;

(c) who possess the qualifications required for appointment to the highest prosecutorial or judicial offices in their respective Member States and have relevant practical experience of national legal systems, financial investigations and of international judicial cooperation in criminal matters, or have served as European Prosecutors, and

(d) who have sufficient managerial experience and qualifications for the position.

Article 15

Appointment and dismissal of the Deputy European Chief Prosecutors

Article 16

Appointment and dismissal of the European Prosecutors

Each Member State shall nominate three candidates for the position of European Prosecutor from among candidates:

(a) who are 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.

Where the College acknowledges the need for substitution, the designated person shall act as an interim European Prosecutor, pending replacement or return of the European Prosecutor, for a period not exceeding 3 months. The College may, upon request, prolong that period if necessary. The mechanisms and modalities of temporary substitution shall be determined and governed by the internal rules of procedure of the EPPO.

Article 17

Appointment and dismissal of the European Delegated Prosecutors

Article 18

Status of the Administrative Director

Article 19

Responsibilities of the Administrative Director

The Administrative Director shall be responsible for the implementation of the administrative tasks assigned to the EPPO, in particular:

(a) the day-to-day administration of the EPPO and staff management;

(b) implementing the decisions adopted by the European Chief Prosecutor or the College;

(c) preparing a proposal for the annual and multi-annual programming document and submitting it to the European Chief Prosecutor;

(d) implementing the annual and multi-annual programming documents and reporting to the College on their implementation;

(e) preparing the administrative and budgetary parts of the annual report on the EPPO’s activities;

(f) preparing an action plan following-up on the conclusions of the internal or external audit reports, evaluations and investigations, including those of the European Data Protection Supervisor and OLAF and reporting to them and to the College twice a year;

(g) preparing an internal anti-fraud strategy for the EPPO and presenting it to the College for approval;

(h) preparing a proposal for the draft financial rules applicable to the EPPO, and submitting it to the European Chief Prosecutor;

(i) preparing a proposal for the EPPO’s draft statement of estimates of revenues and expenditures, and submitting it to the European Chief Prosecutor;

(j) providing necessary administrative support to facilitate the operational work of the EPPO;

(k) providing support to the European Chief Prosecutor and the Deputy European Chief Prosecutors in the carrying out of their duties.

Article 20

Provisional administrative arrangements of the EPPO

Based on provisional budgetary appropriations allocated in its own budget, the Commission shall be responsible for the establishment and initial administrative operation of the EPPO until the latter has the capacity to implement its own budget. For that purpose the Commission may:

(a) designate, after consulting with the Council, a Commission official to act as interim Administrative Director and exercise the duties assigned to the Administrative Director, including the powers conferred by the Staff Regulations and the Conditions of Employment on the appointing authority regarding administrative staff of the EPPO, in respect of any staff positions which need to be filled before the Administrative Director takes up his or her duties in accordance with Article 18;

(b) offer assistance to the EPPO, in particular by seconding a limited number of Commission officials necessary to carry out the administrative activities of the EPPO under the responsibility of the interim Administrative Director.

SECTION 3

Internal rules of procedure of the EPPO

Article 21

Internal rules of procedure of the EPPO

CHAPTER IV

COMPETENCE AND EXERCISE OF THE COMPETENCE OF THE EPPO

SECTION 1

Competence of the EPPO

Article 22

Material competence of the EPPO

Article 23

Territorial and personal competence of the EPPO

The EPPO shall be competent for the offences referred to in Article 22 where such offences:

(a) were committed in whole or in part within the territory of one or several Member States;

(b) were committed by a national of a Member State, provided that a Member State has jurisdiction for such offences when committed outside its territory, or

(c) were committed outside the territories referred to in point (a) by a person who was subject to the Staff Regulations or to the Conditions of Employment, at the time of the offence, provided that a Member State has jurisdiction for such offences when committed outside its territory.

SECTION 2

Exercise of the competence of the EPPO