European Public Prosecutor's Office

Name: European Public Prosecutor's Office | Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor's Office ('the EPPO')
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Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor's Office ('the EPPO')

Hans-Holger Herrnfeld Dominik Brodowski Christoph Burchard(Autor*in)

Nomos (Verlag)

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Erschienen am 2. November 2020

798 Seiten

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Cover
Introduction Hans-Holger Herrnfeld
A. Genesis of the EPPO Regulation
B. Article 86 TFEU - legal basis - enhanced cooperation
C. Material competence of the EPPO
D. Structure of the EPPO and cooperation with national authorities
E. Procedural law framework for the EPPO
CHAPTER I SUBJECT MATTER AND DEFINITIONS
Article 1 Subject matter
Analysis and interpretation of elements
Article 2 Definitions
Analysis and interpretation of elements
I. Number 1: Member State
II. Number 2: Person
III. Number 3: Financial interests of the Union
CHAPTER II ESTABLISHMENT, TASKS AND BASIC PRINCIPLES OF THE EPPO
Article 3 Establishment
Analysis and interpretation of elements
Article 4 Tasks
Analysis and interpretation of elements
Article 5 Basic principles of the activities
A. Purpose of the provision, legislative history
B. Analysis and interpretation of elements
I. Fundamental rights (Article 5(1))
II. Rule of law and proportionality (Article 5(2))
III. The interplay between the Regulation and national law (Article 5(3))
esp. in light of Articles 51, 52 and 53 of the Charter
IV. Impartiality and the duty to seek all evidence whether inculpatory or exculpatory (Article 5(4))
V. Opening and conducting investigations without undue delay (Article 5(5))
VI. Principle of sincere cooperation (Article 5(6))
Article 6 Independence and accountability
A. Purpose of the provision, legislative history
B. Analysis and interpretation of elements
I. External independence (Article 6(1))
II. Accountability (Article 6(2))
Article 7 Reporting
A. Introduction
genesis of the provision
B. Annual Report (Article 7(1))
C. Hearings (Article 7(2))
I. European Parliament and Council
II. National Parliaments
CHAPTER III STATUS, STRUCTURE AND ORGANISATION OF THE EPPO
SECTION 1 Status and structure of the EPPO
Article 8 Structure of the EPPO
A. Introduction
purpose of the provision
B. Analysis and interpretation of elements: The internal governance structure of the EPPO as a whole
I. The constitutional structural principles of the EPPO (Article 8(1))
II. The internal governance structure of the EPPO from an integrated perspective (Article 8(2) to (5))
1. The actors of the EPPO at the central level (Article 8(3))
2. The EPPO at the decentralised level (Article 8(4))
3. The staff of the EPPO (Article 8(5))
4. Instructed national authorities (Article 28(1))
5. The chain-of-command of the EPPO
C. Legislative history
I. The 2001 Commission Green Paper and the 2013 Commission Proposal on the establishment of the EPPO
II. Negotiations in the Council
III. Interventions of the European Parliament
D. General Assessment
I. Critical voices
II. Own opinion
Article 9 The College
A. Purpose of the provision, legislative history
B. Analysis and interpretation of elements
I. Composition of the College (Article 9(1) sentence 1)
II. Responsibilities of the College
1. General oversight (Article 9(2))
a) General remarks
b) Formulation etc. of (coherent, effective, efficient, and consistent) prosecution etc. policies
2. Structural organization (Article 9(3) and (4))
a) Setting up the Permanent Chambers
b) Internal rules of procedure, stipulating the responsibilities for the performance of functions of the members of the College and the staff of the EPPO (Article 9(4))
3. Further responsibilities under the Regulation
III. Modalities on the exercise by the College of its functions
1. Quorum, delegation of powers
2. Meetings of the College, voting
Article 10 The Permanent Chambers
A. Purpose of the provision, legislative history
B. Analysis and interpretation of elements
I. Composition (Article 10(1)[1] and Article 10(9))
II. Allocation of cases (Article 10(1)[2])
III. Duties and powers
1. General duties (Article 10(2))
2. Operational decision-making (Article 10(3), (4) and (5))
a) Article 10(3)
b) Article 10(4)
c) Article 10(5)
3. Delegation of decision-making powers (Article 10(7))
IV. Deliberation, Decision-Making (Article 10(6), (8), and (9))
Article 11 The European Chief Prosecutor and the Deputy European Chief Prosecutors
Analysis and interpretation of elements
I. The European Chief Prosecutor
II. The Deputy European Chief Prosecutors
Article 12 The European Prosecutors
A. Purpose of the provision, legislative history
B. Analysis and interpretation of elements
I. Internal Competence
1. The Rule: Supervision of Cases from their Member State of Origin (Article 12(1)[1])
2. Exceptions (Article 12(1)[2] and Article 12(2))
a) Temporary substitution (Article 12(1)[2])
b) Reassignment (Article 12(2))
II. Duties and Powers
1. General duties and powers (Article 12(1) and (5))
2. Power to give instructions (Article 12(3))
3. Internal Review within the Structure of a National Prosecutor's Office (Article 12(4))
4. Further Duties and Powers (not regulated in Article 12)
Article 13 The European Delegated Prosecutors
A. Purpose of the provision, legislative history
B. Analysis and interpretation of elements
I. Status of the European Delegated Prosecutor
II. Competence of the European Delegated Prosecutor
division of competence between the European Delegated Prosecutors in one Member State
III. Powers and Duties of the European Delegated Prosecutor
SECTION 2 Appointment and dismissal of the members of the EPPO
Article 14 Appointment and dismissal of the European Chief Prosecutor
A. Appointment and dismissal of the members of the EPPO: General overview, purpose, legislative history, evaluation
B. Analysis and interpretation of elements
I. Appointment of the European Chief Prosecutor
term of office (Article 14(1), (4) and (6))
II. Preconditions for candidates (Article 14(2))
III. Selection Procedure (Article 14(3))
IV. Excursus: The members of and the operating rules for the first selection panel
V. Dismissal (Article 14(5))
Article 15 Appointment and dismissal of the Deputy European Chief Prosecutors
Analysis and interpretation of elements
I. Appointment (Article 15(1), (2) sentence 1, and (3))
II. Dismissal (Article 15(2) sentence 2 and (3) sentence 2)
Article 16 Appointment and dismissal of the European Prosecutors
Analysis and interpretation of elements
I. Appointment (Article 16(1) to (4), (6))
II. Dismissal (Article 16(5))
III. (Temporary) Substitution (Article 16(7))
Article 17 Appointment and dismissal of the European Delegated Prosecutors
Analysis and interpretation of elements
I. Appointment (Article 17(1), (2) and (5))
II. Dismissal and disciplinary action (Article 17(3) and (4))
Article 18 Status of the Administrative Director
A. Purpose of the provision, legislative history, summary evaluation
B. Analysis of the provision
I. The Administrative Director as a temporary agent (Article 18(1))
II. Appointment of a new Administrative Director (Article 18(2))
III. Term of office
assessment procedure
extension of term of office (Article 18(3) to (5))
IV. Accountability (Article 18(6))
V. Removal from office (Article 18(7))
Article 19 Responsibilities of the Administrative Director
Analysis and interpretation of elements
Article 20 Provisional administrative arrangements of the EPPO
SECTION 3 Internal rules of procedure of the EPPO
Article 21 Internal rules of procedure of the EPPO
A. Introduction
genesis of the provision
B. On the EPPO's internal rules of procedure
I. Legal nature, binding force, and effects
II. Scope
C. Analysis of the individual provisions of Article 21
I. General clause (Article 21(1))
II. Adoption (Article 21(2))
III. Modification (Article 21(3))
D. Assessment
CHAPTER IV COMPETENCE AND EXERCISE OF THE COMPETENCE OF THE EPPO COMPETENCE AND EXERCISE OF THE COMPETENCE
SECTION 1 Competence of the EPPO
Article 22 Material competence of the EPPO
A. Introduction
genesis of the provision
B. Rules concerning the definition of criminal offences in Directive (EU) 2017/1371
I. Genesis of the PIF-Directive
II. Fraud affecting the Union's financial interests (Article 3 PIF-Directive)
1. Common requirements (Article 3(1) PIF-Directive)
2. Non-procurement-related expenditure fraud (Article 3(2)(a) PIF-Directive)
a) Misappropriation or wrongful retention of funds or assets
b) Use or presentation of false, incorrect or incomplete statements or documents (Article 3(2)(a)(i) PIF-Directive)
c) Non-disclosure of information in violation of a specific obligation (Article 3(2)(a)(ii) PIF-Directive)
d) Misapplication of funds or assets (Article 3(2)(a)(iii) PIF-Directive)
e) Sanctions with regard to natural persons (Article 7 PIF-Directive)
f) Incitement, aiding and abetting, and attempt (Article 5 PIF-Directive)
3. Procurement-related expenditure fraud (Article 3(2)(b) PIF-Directive)
a) Misappropriation or wrongful retention of funds or assets
b) Use or presentation of false, incorrect or incomplete statements or documents (Article 3(2)(b)(i) PIF-Directive)
c) Non-disclosure of information in violation of a specific obligation (Article 3(2)(b)(ii) PIF-Directive)
d) Misapplication of funds or assets (Article 3(2)(b)(iii) PIF-Directive)
e) Sanctions with regard to natural persons (Article 7 PIF-Directive)
f) Incitement, aiding and abetting, and attempt (Article 5 PIF-Directive)
4. Revenue fraud excluding VAT fraud (Article 3(2)(c) PIF-Directive)
a) Illegal diminution of the resources of Union budgets
b) Use or presentation of false, incorrect or incomplete statements or documents (Article 3(2)(c)(i) PIF-Directive)
c) Non-disclosure of information in violation of a specific obligation (Article 3(2)(c)(ii) PIF-Directive)
d) Misapplication of a legally obtained benefit (Article 3(2)(c)(iii) PIF-Directive)
e) Sanctions with regard to natural persons (Article 7 PIF-Directive)
f) Incitement, aiding and abetting, and attempt (Article 5 PIF-Directive)
5. VAT fraud (Article 3(2)(d) PIF-Directive)
a) Use or presentation of false, incorrect or incomplete VAT-related statements or documents (Article 3(2)(d)(i) PIF-Directive)
b) Non-disclosure of VAT-related information in violation of a specific obligation (Article 3(2)(d)(ii) PIF-Directive)
c) Disguising the non-payment of VAT or wrongful creation of rights to VAT refunds (Article 3(2)(d)(iii) PIF-Directive)
d) Sanctions with regard to natural persons (Article 7 PIF-Directive)
e) Incitement, aiding and abetting, and attempt (Article 5 PIF-Directive)
III. Other criminal offences affecting the Union's financial interests (Article 4 PIF-Directive)
1. Money laundering (Article 4(1) PIF-Directive)
2. Corruption (Article 4(2) PIF-Directive)
a) Common provisions
b) Public official (Article 4(4) PIF-Directive)
3. Misappropriation of funds (Article 4(3) PIF-Directive)
4. Sanctions with regard to natural persons (Article 7 PIF-Directive)
5. Incitement, aiding and abetting, and attempt (Article 5 PIF-Directive)
C. Analysis of the individual provisions of Article 22
I. Common requirement: criminal offence according to national law
II. Material competence in respect of PIF offences (Article 22(1))
III. Material competence in respect of participation in a criminal organisation (Article 22(2))
IV. Material competence in respect of inextricably linked offences (Article 22(3))
V. Protective clause concerning offences relating to national direct taxes (Article 22(4))
D. Assessment
Article 23 Territorial and personal competence of the EPPO
A. Introduction
genesis of the provision
B. Competence of the EPPO and jurisdictional principles in Article 23
I. EPPO competence and Member States' rules on jurisdiction
II. EPPO competence on the basis of the principle of territoriality (Article 23(a))
III. EPPO competence on the basis of the active personality principle (Article 23(b) and (c))
C. Jurisdictional principles, case allocation and choice of forum
D. Assessment
SECTION 2 Exercise of the competence of the EPPO
Article 24 Reporting, registration and verification of information
A. Introduction
genesis of the provision
B. The EPPO's sources of information on possible criminal conduct
C. Analysis of the individual provisions of Article 24
I. Obligation to inform the EPPO
1. General obligation to inform the EPPO (Article 24(1))
2. Specific obligation to inform the EPPO about investigations initiated in the Member States (paragraph 2)
3. Information to be provided about cases assumed to be outside of the competence of the EPPO (Article 24(3))
4. Content of information to be provided (Article 24(4))
5. Reporting obligation where no final assessment of EPPO competence is possible (Article 24(5))
II. Registration and verification of the information received
1. Process of registration and verification (Article 24(6))
2. Grounds to initiate an investigation (Article 24(6))
3. No grounds to initiate an EPPO investigation (Article 24(7))
4. Information to national authorities in case of possible criminal conduct outside of EPPO competence (Article 24(8))
III. Right of the EPPO to request further information (Article 24(9) and (10))
D. Assessment
Article 25 Exercise of the competence of the EPPO
A. Introduction
genesis of the provision
B. The concept of "shared competences"
C. Analysis of the individual provisions of Article 25
I. Exercising competence of the EPPO (Article 25(1))
II. Limitations to the exercise of competence
1. Minor case (Article 25(2))
2. Preponderance criteria (Article 25(3))
a) Inextricably linked offences (point (a))
b) Damage caused to EU and other victims (point (b))
3. Exercise of EPPO competence by consent (Article 25(4))
III. Information obligation (Article 25(5))
IV. Conflicts of competence between the EPPO and national prosecution authorities (Article 25(6))
D. Assessment
CHAPTER V RULES OF PROCEDURE ON INVESTIGATIONS, INVESTIGATION MEASURES, PROSECUTION AND ALTERNATIVES TO PROSECUTION RULES OF PROCEDURE
SECTION 1 Rules on investigations
Article 26 Initiation of investigations and allocation of competences within the EPPO
A. Introduction
genesis of the provision
B. The concept of initiating an investigation under the EPPO Regulation
C. Analysis of the individual provisions
I. Initiation of investigations by an EDP (Article 26(1), (3) and (4))
1. Reasonable grounds to believe that an offence within the competence of the EPPO has been committed (Article 26(1))
2. Jurisdiction of the Member State and the EDP's competence to initiate an investigation (Article 26(1))
3. Decision to initiate an investigation - legality principle (Article 26(1))
4. Multiple jurisdictions - criteria for case allocation (Article 26(4))
5. Role of the Permanent Chamber (Article 26(3) and (4))
II. Information obligations (Article 26(2) and (7))
III. Reallocation, merging and splitting of cases between Member States (Article 26(5) and (6))
D. Legal consequences of a decision to initiate an investigation and judicial review
E. Assessment
Article 27 Right of evocation
A. Introduction
genesis of the provision
B. Preconditions for exercising the right of evocation
C. Analysis of the individual provisions
I. Decision on whether to exercise the right of evocation (Article 27(1) and (3))
1. Receipt of information in accordance with Article 24(2)
2. Receipt of information from other sources (Article 27(3))
3. No applicability of the legality principle
II. Competences and procedures (Article 27(1), (2), (4), (6) and (8))
1. Competence of an EDP (Article 27(6))
2. Multiple jurisdictions - criteria for case allocation
3. Internal decision-making competences and reporting obligations (Article 27(6), (8) and (9))
4. Decision-making procedures and time limits (Article 27(1), (2) and (4))
III. Legal consequences of a decision to exercise the right of evocation (Article 27(5))
IV. Decision to refrain from exercising the right of evocation (Article 27(7))
D. Assessment
Article 28 Conducting the investigation
A. Introduction
genesis of the provision
B. The relationship between the EPPO and the national law enforcement authorities
C. Analysis of the individual provisions
I. Conducting investigations by the EPPO (Article 28(1))
1. The EDP's role to conduct investigations
2. The national authorities' obligation to follow the EDPs instructions
3. Reporting by the EDP and supervision by the Central Office
II. The competence of national authorities to take urgent measures (Article 28(2))
III. Reallocation of the case to another EDP of the same Member State (Article 28(3))
IV. The European Prosecutor as handling EDP (Article 28(4))
D. Assessment
Article 29 Lifting privileges or immunities
A. Introduction
genesis of the provision
B. The protection of privileges and immunities under the EPPO Regulation
I. Privileges and immunities
II. Protection of privileges and immunities under the EPPO Regulation
C. Analysis of the individual provisions of Article 29
I. Involvement of persons protected by privileges or immunities
1. National law (Article 29(1))
2. Union law (Article 29(2))
II. Obstacle to a specific investigation
III. Lifting procedure in national or Union law
IV. Procedure
D. Assessment
SECTION 2 Rules on investigation measures and other measures
Article 30 Investigation measures and other measures
A. Introduction
genesis of the provision
B. Analysis of the individual provisions of Article 30
I. Member States' obligation to provide for minimum set of investigation measures (Article 30(1) to (3))
1. General requirement (Article 30(1))
2. Specific set of investigation measures
a) Search (Article 30(1)(a))
b) Production order (Article 30(1)(b))
c) Production and decryption order relating to data (Article 30(1)(c))
d) Freezing of instrumentalities and proceeds of crime (Article 30(1)(d))
e) Interception of electronic communications (Article 30(1)(e))
f) Tracking and tracing an object by technical means(Article 30(1)(f))
3. Conditions and restrictions regarding persons or professionals bound by an obligation of confidentiality (Article 30(2))
4. Conditions and limitations to specific measures (Article 30(3))
5. Further conditions and limitations
non-compliance by a Member State
II. Member States' obligation to make further measures available to EDP (Article 30(4))
III. Undertaking of investigation measures by an EDP (Article 30(5))
1. Proportionality and subsidiarity requirement (Article 30(5) sentence 1)
2. Procedures and modalities (Article 30(5) sentence 2)
C. Assessment
Article 31 Cross-border investigations
A. Introduction
genesis of the provision
B. Cross-border investigations - "single Office" without "single legal area"
C. Analysis of the individual provisions
I. The respective tasks of the handling and the assisting EDP (Article 31(1))
II. Adoption and assignment of an investigation measure (Article 31(2))
III. Judicial authorization (Article 31(3))
1. Overview - the concept of "judicial authorization" being "required"
2. Judicial authorization required in Member State of the assisting EDP or in both Member States
3. Judicial authorization required only in Member State of the handling EDP
IV. Obligations of the assisting EDP to undertake the measure
1. Undertake the measure or instruct a national authority (Article 31(4))
2. Consultation requirement (Article 31(5))
3. Decision-making competence of Permanent Chamber (Article 31(7) and (8))
V. Possible recourse to instruments on mutual recognition or mutual legal assistance (Article 31(6))
D. Judicial review of cross-border investigation measures
E. Assessment
Article 32 Enforcement of assigned measures
Analysis and interpretation of elements
Article 33 Pre-trial arrest and cross-border surrender
A. Purpose of the provision, legislative history
B. Analysis and interpretation of elements
I. Arrest and pre-trial detention (Article 33(1))
II. Issuance of an EAW (Article 33(2))
SECTION 3 Rules on prosecution
Article 34 Referrals and transfers of proceedings to the national authorities
A. Introduction
genesis of the provision
B. The concept of referral and transfer of proceedings
C. Analysis of the individual provisions
I. Reasons to refer the case to a national authority
1. No EPPO competence (Article 34(1))
2. EPPO should not exercise competence (Article 34(2))
3. Optional referral in less serious cases (Article 34(3) and (4))
4. Referral instead of dismissal by the EPPO (Article 34(6))
II. Legal consequences if national authority does not take the case (Article 34(5))
III. Transferring the file to the national authority (Article 34(7) and (8))
D. Assessment
Article 35 Termination of the investigation
A. Introduction
genesis of the provision
B. Decision making processes and the EPPO's structure
C. Analysis of the individual provisions
I. Decisions on the termination of the EPPO's investigations (Article 35(1))
1. Investigations considered to be completed
2. Possible decisions to be taken
3. Procedures
II. Proposal on the choice of forum (Article 35(3))
III. Decision making competences of the Chamber (Article 35(2))
D. Assessment
Article 36 Prosecution before national Courts
A. Introduction
genesis of the provision
B. The EPPO as prosecutor in the national courts
C. Analysis of the individual provisions
I. Bringing the case to judgement (Article 36(1) and (2))
1. Decision-making procedure
2. Decision making powers of the Chamber
II. Choice of forum (Article 36(3))
1. The EPPO's decision to choose a forum for prosecution
2. Judicial review of the choice of forum by the EPPO
III. Joining cases for purpose of prosecution (Article 36(4))
IV. Determination of the competent national court (Article 36(5))
V. Information on decision to prosecute (Article 36(6))
VI. Decision-making procedures in the main proceedings
D. Assessment
Article 37 Evidence
A. Purpose of the provision
legislative history
B. Analysis and interpretation of elements
I. Admissibility of evidence (Article 37(1))
II. Assessment of evidence (Article 37(2))
Article 38 Disposition of confiscated assets
A. Introduction
genesis of the provision
B. Minimum requirements on confiscation measures under Union law
C. Analysis of the individual provisions of Article 38
I. Referral to national law (Article 38 sentence 1)
II. Compensation of victims (Article 38 sentence 2)
D. Assessment
SECTION 4 Rules on alternatives to prosecution
Article 39 Dismissal of the case
A. Introduction
genesis of the provision
B. Scope and (non-)exclusivity of Article 39
I. Scope
II. Dismissal of cases beyond Article 39
C. Analysis of the individual provisions of Article 39
I. Dismissal of a case (Article 39(1))
1. Grounds for dismissal
a) Death
winding up of a legal person
b) Insanity
c) Amnesty
d) Immunity
e) Statutory limitation to prosecute
f) Ne bis in idem
g) Lack of relevant evidence
2. Procedure
judicial review
II. Reopening investigations (Article 39(2))
III. Consultation with and referral to national authorities (Article 39(3))
1. Applicability
2. Grounds for dismissal
relation to Article 34(1) and (3)
3. Procedure
IV. Notification
recovery and other administrative follow-up (Article 39(4))
1. Notification
2. Recovery and other administrative follow-up
D. Assessment
SECTION 5 Rules on simplified procedures
Article 40 Simplified prosecution procedures
A. Introduction
genesis of the provision
B. Scope
requirements to simplified prosecution procedures
I. Scope
II. Simplified prosecution procedures in applicable national law
C. Analysis of the individual provisions of Article 40
I. Proposal to apply a simplified prosecution procedure (Article 40(1))
1. Procedure
discretion
2. Consultation with national prosecution authorities (Article 40(1)[2])
II. Decision to apply a simplified prosecution procedure (Article 40(2))
1. Procedure
discretion
judicial review (Article 40(2)[1])
2. Specific criteria to be taken into account (Article 40(2)[1])
3. Guidelines (Article 40(2)[2])
III. Application of a simplified prosecution procedure and disposal of the case (Article 40(3))
D. Assessment
CHAPTER VI PROCEDURAL SAFEGUARDS
Article 41 Scope of the rights of the suspects and accused persons
A. Introduction
genesis of the provision
B. Defence rights in Europeanized criminal proceedings
C. Analysis of the individual provisions of Article 41
I. Full compliance with the Charter of Fundamental Rights (Article 41(1))
1. Personal, material and temporal scope
2. Rights of suspects and accused persons enshrined in the Charter
3. Full compliance
II. Minimum procedural rights under Union law (Article 41(2))
1. Personal, material and temporal scope
2. Procedural rights provided for in Union law as a minimum standard
3. On specific procedural rights provided for in Union law
a) Right to interpretation and translation (Directive 2010/64/EU)
b) Right to information and access to the case materials (Directive 2012/13/EU)
c) Right of access to a lawyer and the right to communicate with and have third persons informed in the event of detention (Directive 2013/48/EU)
d) Right to remain silent and the right to be presumed innocent (Directive (EU) 2016/343)
e) Right to legal aid (Directive (EU) 2016/1919)
f) Procedural rights provided for in other Union law
future legislative action
III. Procedural rights under applicable national law (Article 41(3))
1. Personal, material and temporal scope
2. Subsidiarity to other provisions in Articles 41 and 42
3. Reference to applicable national law on procedural rights
D. Assessment
Article 42 Judicial review
A. Introduction
genesis of the provision
B. Scope and purpose of Article 42: judicial control of the EPPO
I. Scope ratione materiae
II. Treaty compliance and raison d'être
III. Scope ratione personae
C. Analysis of the individual provisions
I. Competence of national courts for the review of procedural acts of the EPPO (Article 24(1))
1. Competence of the national courts - no competence of the CJEU
2. Procedural acts of the EPPO and failures to act
a) Procedural acts of the EPPO
b) Acts intended to produce legal effects vis-à-vis third parties
c) EPPO's failures to act
3. Subject to review by the competent national courts
a) Requirements and procedures laid down by national law
b) Benchmarks for the review by national courts
c) Possible types of decisions by national courts
4. Member States' obligation to provide effective judicial review
5. Challengeable procedural acts of the EPPO
II. Role of the CJEU to give preliminary rulings (Article 42(2))
1. Review of the validity of procedural acts (Article 42(2)(a))
a) Possibility to request a preliminary ruling
b) Obligation to request a preliminary ruling
c) Formulating preliminary questions and legal effects of preliminary rulings on validity
2. Interpretation or validity of Union law (Article 42(2)(b))
3. Conflicts of competence (Article 42(2)(c))
III. Competence of the CJEU for review of the EPPO's decision to dismiss a case (Article 42(3))
IV. Further competences of the CJEU (Article 42(4) to (8))
1. Disputes relating to compensation for damage (Article 42(4))
2. Disputes concerning arbitration clauses (Article 42(5))
3. Disputes concerning staff matters (Article 42(6))
4. Dismissal of the European Chief Prosecutor or European Prosecutors (Article 42(7))
5. Disputes concerning data subjects' rights and administrative decisions of the EPPO (Article 42(8))
a) Judicial review of decisions that affect the data subject's rights under Chapter VIII of the Regulation
b) Judicial review of administrative decisions of the EPPO
D. Assessment
CHAPTER VII PROCESSING OF INFORMATION
Article 43 Access to information by the EPPO
Article 44 Case management system
A. Introduction
genesis of the provision
B. Analysis of the individual provisions
Article 45 Case files of the EPPO
A. Introduction
genesis of the provision
B. Analysis of the individual provisions
I. Opening and managing of case files
II. Access to case files
Article 46 Access to the case management system
A. Introduction
genesis of the provision
B. Analysis of the individual provisions
CHAPTER VIII DATA PROTECTION
Introduction to Chapter VIII (Articles 47 to 89)
[SECTION 1] [Principles]Apparently by mistake, Chapter VIII on Data Protection, in spite of the fact that it is by far the longest chapter of the Regulation, has not been subdivided into sections. The section numbers and titles inserted in square brackets used here are largely based on the corresponding titles used in Directive (EU) 2016/680.
Article 47 Principles relating to processing of personal data
A. Introduction
genesis of the provision
B. Analysis of the individual provisions of Article 47
I. General principles of data protection (Article 47(1))
II. The principle of accountability and the scope of Chapter VIII (Article 47(2))
III. Processing for purposes other than that for which the data have been collected (Article 47(3))
Article 48 Administrative personal data
Article 49 Processing of operational personal data
A. Introduction
genesis of the provision
B. Analysis of the individual provisions of Article 49
I. Purpose definition and limitation (Article 49(1))
II. Temporary processing for other purposes (Article 49(4))
III. Categories of personal data (Article 49(2) and (3))
IV. Keeping track of the origin of personal data (Article 49(5))
V. Compliance with national procedural law (Article 49(6))
Article 50 Time-limits for the storage of operational personal data
Article 51 Distinction between different categories of data subjects
Article 52 Distinction between operational personal data and verification of quality of personal data
Article 53 Specific processing conditions
Article 54 Transmission of operational personal data to institutions, bodies, offices and agencies of the Union
Article 55 Processing of special categories of operational personal data
Article 56 Automated individual decision-making, including profiling
[SECTION 2] [Rights of the data subject]Apparently by mistake, Chapter VIII on Data Protection, in spite of the fact that it is by far the longest chapter of the Regulation, has not been subdivided into sections. The section numbers and titles inserted in square brackets used here are largely based on the corresponding titles used in Directive (EU) 2016/680.
Article 57 Communication and modalities for exercising the rights of the data subject
Article 58 Information to be made available or given to the data subject
Article 59 Right of access by the data subject
Article 60 Limitations of the right of access
Article 61 Right to rectification or erasure of operational personal data and restriction of data processing
Article 62 Exercise of rights by the data subject and verification by the European Data Protection Supervisor
[SECTION 3] [Controller and processor]Apparently by mistake, Chapter VIII on Data Protection, in spite of the fact that it is by far the longest chapter of the Regulation, has not been subdivided into Sections. The section numbers and titles inserted in square brackets used here are largely based on the corresponding titles used in Directive (EU) 2016/680.
Article 63 Obligations of the EPPO
Article 64 Joint controllers
Article 65 Processor
Article 66 Processing under the authority of the controller or processor
Article 67 Data protection by design and by default
Article 68 Records of categories of processing activities
Article 69 Logging in respect of automated processing
Article 70 Cooperation with the European Data Protection Supervisor
Article 71 Data protection impact assessment
Article 72 Prior consultation of the European Data Protection Supervisor
[SECTION 4] [Security of personal data]Apparently by mistake, Chapter VIII on Data Protection, in spite of the fact that it is by far the longest chapter of the Regulation, has not been subdivided into Sections. The section numbers and titles inserted in square brackets used here are largely based on the corresponding titles used in Directive (EU) 2016/680. The commentary on this section is set out further below, following the text of Article 76.
Article 73 Security of processing of operational personal data
Article 74 Notification of a personal data breach to the European Data Protection Supervisor
Article 75 Communication of a personal data breach to the data subject
Article 76 Authorised access to operational personal data within the EPPO
[SECTION 5] [Data Protection Officer]Apparently by mistake, Chapter VIII on Data Protection, in spite of the fact that it is by far the longest chapter of the Regulation, has not been subdivided into Sections. The section numbers and titles inserted in square brackets used here are largely based on the corresponding titles used in Directive (EU) 2016/680.The commentary on this section is set out further below, following the text of Article 79.
Article 77 Designation of the Data Protection Officer
Article 78 Position of the Data Protection Officer
Article 79 Tasks of the data protection officer
[SECTION 6] [Transfers of personal data to third countries or international organisations]Apparently by mistake, Chapter VIII on Data Protection, in spite of the fact that it is by far the longest chapter of the Regulation, has not been subdivided into Sections. The section numbers and titles inserted in square brackets used here are largely based on the corresponding titles used in Directive (EU) 2016/680. The commentary on this section is set out below, following the text of Article 84. [Trans
Article 80 General principles for transfers of operational personal data
Article 81 Transfers on the basis of an adequacy decision
Article 82 Transfers subject to appropriate safeguards
Article 83 Derogations for specific situations
Article 84 Transfers of operational personal data to recipients established in third countries
[SECTION 7] [Tasks of the European Data Protection Supervisor]Apparently by mistake, Chapter VIII on Data Protection, in spite of the fact that it is by far the longest chapter of the Regulation, has not been subdivided into Sections. The section numbers and titles inserted in square brackets used here are largely based on the corresponding titles used in Directive (EU) 2016/680
in case of Articles 85 to 89 a generic title was chose as the provisions in this section considerably differ from tho
Article 85 Supervision by the European Data Protection Supervisor
Article 86 Professional secrecy of the European Data Protection Supervisor
Article 87 Cooperation between the European Data Protection Supervisor and national supervisory authorities
Article 88 Right to lodge a complaint with the European Data Protection Supervisor
Article 89 Right to judicial review against the European Data Protection Supervisor
CHAPTER IX FINANCIAL AND STAFF PROVISIONS
SECTION 1 Financial Provisions
Article 90 Financial actors
A. Introduction
genesis of the provision
B. Relevant EU legal framework
C. Analysis of the individual provisions
Article 91 Budget
A. Introduction
genesis of the provision
B. Analysis of the individual provisions
I. General budgetary principles (Article 91(1) to (4))
II. Operational expenditure (Article 91(5) and (6))
III. Budgetary consequences of enhanced cooperation (Article 91(7) and (8))
Article 92 Establishment of the budget
Article 93 Implementation of the budget
Article 94 Presentation of accounts and discharge
Article 95 Financial rules
SECTION 2 Staff Provisions
Article 96 General provisions
A. Introduction
genesis of the provision
B. Analysis of the individual provisions
I. Applicability of EUSR and CEOS (Article 96(1) and (2))
II. Role and competences of the appointing authority (Article 96(3))
III. The EPPO's implementing rules (Article 96(4))
IV. Protocol on the Privileges and Immunities (Article 96(5))
V. European Delegated Prosecutors (Article 96(6))
1. Status as "Special Advisor" in accordance with the CEOS
2. Responsibilities of the national authorities
3. Employment conditions and work environment
VI. Independence of the EPs and the EDPs (Article 96(7))
Article 97 Temporary agents and contract agents
Article 98 Seconded national experts and other staff
CHAPTER X PROVISIONS ON THE RELATIONS OF THE EPPO WITH ITS PARTNERS PROVISIONS ON THE RELATIONS OF EPPO WITH PARTNERS
Article 99 Common provisions
A. Introduction
genesis of the provision
B. Analysis of the individual provisions of Article 99
I. Cooperative Relations (Article 99(1))
II. Exchange of Information (Article 99(2))
III. Working Arrangements (Article 99(3))
C. Assessment
Article 100 Relations with Eurojust
A. Introduction
genesis of the provision
B. Eurojust and its role in the investigation and prosecution of PIF offences
I. Eurojust: legal basis, objective, tasks
II. Coordination of the execution of Eurojust's and the EPPO's competences
III. On Eurojust's cooperation with the EPPO
C. Analysis of the individual provisions of Article 100
I. Relationship with Eurojust
regular meeting (Article 100(1))
II. Operational cooperation (Article 100(2))
III. Indirect access to case management systems (Article 100(3))
IV. Assistance in matters of administration (Article 100(4))
D. Assessment
Article 101 Relations with OLAF
A. Introduction
genesis of the provision
B. OLAF and its role in the investigation of PIF offences and administrative responses
I. OLAF: legal basis, objective, tasks
II. Administrative investigations by OLAF under the OLAF Regulation (Regulation [EU, Euratom] 883/2013)
III. On the relation between OLAF and the EPPO
C. Analysis of the individual provisions of Article 101
I. Relationship with OLAF (Article 101(1))
II. Precedence of criminal investigations by the EPPO (Article 101(2))
III. Supportive or complementary actions on request by the EPPO (Article 101(3))
IV. Information on cases not brought to judgment (Article 101(4))
V. Indirect access to case management systems (Article 101(5))
D. Assessment
Article 102 Relations with Europol
A. Introduction
genesis of the provision
B. Europol and its role in the investigation of PIF offences
I. Europol: legal basis, objective, tasks
II. Europol's role relating to the investigation of PIF offences
III. Information sharing by Europol and Europol's information and data protection regime
C. Analysis of the individual provisions of Article 102
I. Relationship with Europol
working arrangement (Article 102(1))
II. Request for information (Article 102(2) alternative 1)
III. Inquiry for analytical support (Article 102(2) alternative 2)
D. Assessment
Article 103 Relations with other institutions, bodies, offices and agencies of the Union
A. Introduction
genesis of the provision
B. On the role of the victim in the EPPO Regulation
C. Analysis of the individual provisions of Article 103
I. Relation with the Commission (Article 103(1))
II. Relation with victims (Article 103(2))
1. General remarks
2. Specific measures
D. Assessment
Article 104 Relations with third countries and international organisations
A. Introduction
genesis of the provision
B. Analysis of the individual provisions of Article 104
I. Structural Cooperation (Article 104(1) and (2))
1. Working arrangements (Article 104(1))
2. Contact points in third countries (Article 104(2))
II. Mutual legal assistance (Article 104(3) to (6))
1. International agreements to which the EU is party to (Article 104(3))
a) Analysis of Article 104(3)
b) International agreements
2. International agreements between Member States and third countries: the EPPO as a competent authority (Article 104(4))
3. Recourse to the national level for requesting legal assistance from third countries (Article 104(5)[1])
4. Requests for legal assistance by the EPPO (Article 104(5)[2])
5. Outgoing legal assistance (Article 104(6))
III. Extradition (Article 104(7))
C. Assessment
Article 105 Relations with Member States of the European Union which do not participate in enhanced cooperation on the establishment of the EPPO
A. Introduction
genesis of the provision
B. Analysis of the individual provisions of Article 105
I. Structural Cooperation (Article 105(1) and (2))
1. Working arrangements (Article 105(1))
2. Contact points in non-participating Member States (Article 105(2))
II. Judicial cooperation in criminal matters (Article 105(3))
1. (Future) legal instruments
2. The EPPO as a competent authority according to Union acts on judicial cooperation
a) Analysis of the provision
b) Specific instruments
C. Assessment
CHAPTER XI GENERAL PROVISIONS
Article 106 Legal status and operating conditions
Article 107 Language arrangements
Article 108 Confidentiality and professional secrecy
Article 109 Transparency
Article 110 OLAF and the Court of Auditors
Article 111 Rules on the protection of sensitive non-classified and classified information
Article 112 Administrative inquiries
Article 113 General regime of liability
A. Introduction
genesis of the provision
B. Analysis of the individual provisions of Article 113
I. Contractual liability of the EPPO (Article 113(1), (2) and (6))
II. Non-contractual liability of the EPPO (Article 113(3) to (5))
III. Personal liability of the staff of the EPPO (Article 113(7))
Article 114 Implementing rules and programme documents
A. Introduction
B. Procedure
"implementing rules" and "programme documents"
C. Minimum set of "implementing rules" and "programme documents"
Article 115 Exercise of the delegation
A. Introduction
B. Material and temporal scope of delegation powers in the EPPO Regulation (Article 115(1) to (3))
C. Adoption of delegated acts and related procedural aspects (Article 115(4) to (6))
Article 116 Urgency procedure
Article 117 Notifications
A. Introduction
B. Designation and notification of relevant authorities (Article 117 sentence 1 and 2)
C. Notification of national substantive criminal law provisions (Article 117 sentence 3)
D. Notification of limitations to specific investigation measures (Article 117 sentence 5)
E. Transparency (Article 117 sentence 4)
Article 118 Review of the rules relating to the protection of natural persons with regard to the processing of personal data by the EPPO
Article 119 Review clause
A. Purpose of the provision
legislative history
B. Analysis and interpretation of elements
I. Evaluation (Article 119(1))
II. Legislative proposals (Article 119(2))
Article 120 Entry into force
A. Introduction
genesis of the provision
B. Analysis of the individual provisions of Article 120
I. Entry into force (Article 120(1))
II. Temporal competence (Article 120(2)[1])
III. Deferred exercise of competence (Article 120(2)[2] and [3])
IV. Subsequent participation, withdrawal, and accession (Article 120(2)[4])
C. Assessment
COUNCIL REGULATION (EU) 2017/1939
CHAPTER I SUBJECT MATTER AND DEFINITIONS
Article 1 Subject matter
Article 2 Definitions
CHAPTER II ESTABLISHMENT, TASKS AND BASIC PRINCIPLES OF THE EPPO
Article 3 Establishment
Article 4 Tasks
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
Article 11 The European Chief Prosecutor and the Deputy European Chief Prosecutors
Article 12 The European Prosecutors
Article 13 The European Delegated Prosecutors
SECTION 2 Appointment and dismissal of the members of the EPPO
Article 14 Appointment and dismissal of the European Chief Prosecutor
Article 15 Appointment and dismissal of the Deputy European Chief Prosecutors
Article 16 Appointment and dismissal of the European Prosecutors
Article 17 Appointment and dismissal of the European Delegated Prosecutors
Article 18 Status of the Administrative Director
Article 19 Responsibilities of the Administrative Director
Article 20 Provisional administrative arrangements of the EPPO
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
SECTION 2 Exercise of the competence of the EPPO
Article 24 Reporting, registration and verification of information
Article 25 Exercise of the competence of the EPPO
CHAPTER V RULES OF PROCEDURE ON INVESTIGATIONS, INVESTIGATION MEASURES, PROSECUTION AND ALTERNATIVES TO PROSECUTION
SECTION 1 Rules on investigations
Article 26 Initiation of investigations and allocation of competences within the EPPO
Article 27 Right of evocation
Article 28 Conducting the investigation
Article 29 Lifting privileges or immunities
SECTION 2 Rules on investigation measures and other measures
Article 30 Investigation measures and other measures
Article 31 Cross-border investigations
Article 32 Enforcement of assigned measures
Article 33 Pre-trial arrest and cross-border surrender
SECTION 3 Rules on prosecution
Article 34 Referrals and transfers of proceedings to the national authorities
Article 35 Termination of the investigation
Article 36 Prosecution before national Courts
Article 37 Evidence
Article 38 Disposition of confiscated assets
SECTION 4 Rules on alternatives to prosecution
Article 39 Dismissal of the case
SECTION 5 Rules on simplified procedures
Article 40 Simplified prosecution procedures
CHAPTER VI PROCEDURAL SAFEGUARDS
Article 41 Scope of the rights of the suspects and accused persons
Article 42 Judicial review
CHAPTER VII PROCESSING OF INFORMATION
Article 43 Access to information by the EPPO
Article 44 Case management system
Article 45 Case files of the EPPO
Article 46 Access to the case management system
CHAPTER VIII DATA PROTECTION
Article 47 Principles relating to processing of personal data
Article 48 Administrative personal data
Article 49 Processing of operational personal data
Article 50 Time limits for the storage of operational personal data
Article 51 Distinction between different categories of data subject
Article 52 Distinction between operational personal data and verification of quality of personal data
Article 53 Specific processing conditions
Article 54 Transmission of operational personal data to institutions, bodies, offices and agencies of the Union
Article 55 Processing of special categories of operational personal data
Article 56 Automated individual decision-making, including profiling
Article 57 Communication and modalities for exercising the rights of the data subject
Article 58 Information to be made available or given to the data subject
Article 59 Right of access by the data subject
Article 60 Limitations to the right of access
Article 61 Right to rectification or erasure of operational personal data and restriction of processing
Article 62 Exercise of rights by the data subject and verification by the European Data Protection Supervisor
Article 63 Obligations of the EPPO
Article 64 Joint controllers
Article 65 Processor
Article 66 Processing under the authority of the controller or processor
Article 67 Data protection by design and by default
Article 68 Records of categories of processing activities
Article 69 Logging in respect of automated processing
Article 70 Cooperation with the European Data Protection Supervisor
Article 71 Data protection impact assessment
Article 72 Prior consultation of the European Data Protection Supervisor
Article 73 Security of processing of operational personal data
Article 74 Notification of a personal data breach to the European Data Protection Supervisor
Article 75 Communication of a personal data breach to the data subject
Article 76 Authorised access to operational personal data within the EPPO
Article 77 Designation of the Data Protection Officer
Article 78 Position of the Data Protection Officer
Article 79 Tasks of the data protection officer
Article 80 General principles for transfers of operational personal data
Article 81 Transfers on the basis of an adequacy decision
Article 82 Transfers subject to appropriate safeguards
Article 83 Derogations for specific situations
Article 84 Transfers of operational personal data to recipients established in third countries
Article 85 Supervision by the European Data Protection Supervisor
Article 86 Professional secrecy of the European Data Protection Supervisor
Article 87 Cooperation between the European Data Protection Supervisor and national supervisory authorities
Article 88 Right to lodge a complaint with the European Data Protection Supervisor
Article 89 Right to judicial review against the European Data Protection Supervisor
CHAPTER IX FINANCIAL AND STAFF PROVISIONS
SECTION 1 Financial provisions
Article 90 Financial actors
Article 91 Budget
Article 92 Establishment of the budget
Article 93 Implementation of the budget
Article 94 Presentation of accounts and discharge
Article 95 Financial rules
SECTION 2 Staff provisions
Article 96 General provisions
Article 97 Temporary agents and contract agents
Article 98 Seconded national experts and other staff
CHAPTER X PROVISIONS ON THE RELATIONS OF THE EPPO WITH ITS PARTNERS
Article 99 Common provisions
Article 100 Relations with Eurojust
Article 101 Relations with OLAF
Article 102 Relations with Europol
Article 103 Relations with other institutions, bodies, offices and agencies of the Union
Article 104 Relations with third countries and international organisations
Article 105 Relations with Member States of the European Union which do not participate in enhanced cooperation on the establishment of the EPPO
CHAPTER XI GENERAL PROVISIONS
Article 106 Legal status and operating conditions
Article 107 Language arrangements
Article 108 Confidentiality and professional secrecy
Article 109 Transparency
Article 110 OLAF and the Court of Auditors
Article 111 Rules on the protection of sensitive non-classified and classified information
Article 112 Administrative inquiries
Article 113 General regime of liability
Article 114 Implementing rules and programme documents
Article 115 Exercise of the delegation
Article 116 Urgency procedure
Article 117 Notifications
Article 118 Review of the rules relating to the protection of natural persons with regard to the processing of personal data by the EPPO
Article 119 Review clause
Article 120 Entry into force
DIRECTIVE (EU) 2017/1371 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
TITLE I SUBJECT MATTER, DEFINITIONS AND SCOPE
Article 1 Subject matter
Article 2 Definitions and scope
TITLE II CRIMINAL OFFENCES WITH REGARD TO FRAUD AFFECTING THE UNION'S FINANCIAL INTERESTS
Article 3 Fraud affecting the Union's financial interests
Article 4 Other criminal offences affecting the Union's financial interests
TITLE III GENERAL PROVISIONS RELATING TO FRAUD AND OTHER CRIMINAL OFFENCES AFFECTING THE UNION'S FINANCIAL INTERESTS
Article 5 Incitement, aiding and abetting, and attempt
Article 6 Liability of legal persons
Article 7 Sanctions with regard to natural persons
Article 8 Aggravating circumstance
Article 9 Sanctions with regard to legal persons
Article 10 Freezing and confiscation
Article 11 Jurisdiction
Article 12 Limitation periods for criminal offences affecting the Union's financial interests
Article 13 Recovery
Article 14 Interaction with other applicable legal acts of the Union
TITLE IV FINAL PROVISIONS
Article 15 Cooperation between the Member States and the Commission (OLAF) and other Union institutions, bodies, offices or agencies
Article 16 Replacement of the Convention on the protection of the European Communities' financial interests
Article 17 Transposition
Article 18 Reporting and assessment
Article 19 Entry into force
Article 20 Addressees

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