¹ The results of the Corpus Juris Project under the direction of Mireille Delmas-Marty are presented in Delmas-Marty, M, Juris, Corpus Introducing Penal Provisions for the Purpose of the Financial Interests of the European Union (Editions Economica, 1997)Google Scholar. For initial reactions to the study, see Spencer, JR, ‘Who’s Afraid of the Big, Bad European Public Prosecutor?’ (2012) 14 Cambridge Yearbook of European Legal Studies 364, pp 367–371 Google Scholar.

² Council Decision (EC) No 436/2007 [2007] OJ L163/1.

³ See Spencer, note 1 above, p 364. See the budget explained at the website of the European Commission: http://ec.europa.eu/budget/explained/index_en.cfm [last accessed 21 March 2016].

⁴ The OLAF Report 2013: Fourteenth report of the European Anti-Fraud Office, 1 January to 31 December 2013 (Publications Office of the European Union, 2014), doi:10.2784/29176, p 14.

⁵ For a more detailed account, see Spencer, JR ‘The Corpus Juris Project and the Fight against Budgetary Fraud’ (1998) 1 Cambridge Yearbook of European Legal Studies 77 CrossRefGoogle Scholar. For a brief overview on VAT, VAT gap and VAT fraud in the context of the EU budget see also House of Lords, European Union Committee - Twelfth Report: The Fight Against Fraud on the EU’s Finances, HL Paper 158, paras 48–57 http://www.publications.parliament.uk/pa/ld201213/ldselect/ldeucom/158/15802.htm.

⁶ The annual reports analyse the figures concerning the previous calendar year. They are prepared in cooperation with the Member States under Article 325 TFEU.

⁷ See Weyembergh, A et al, The Inter-Agency Cooperation and Future Architecture of the EU Criminal Justice and Law Enforcement Area (Policy Department C, 2014), p 34 Google Scholar. http://www.europarl.europa.eu/RegData/etudes/STUD/2014/510000/IPOL_STU(2014)510000_EN.pdf (2014).

⁸ COM (2015) 386 final, p 19.

⁹ For the first time ever, most of the reported fraudulent irregularities (60%) were detected in the agricultural sector, with the largest share of amounts that involve irregularities (63%) still concerning cohesion policy. COM (2014) 474 final, p 13.

¹⁰ See note 8 above.

¹¹ The OLAF Report 2014: Fifteenth report of the European Anti-Fraud Office, 1 January to 31 December 2014 (Publications Office of the European Union, 2015), doi:10.2784/17178, p 23.

¹² See note 4 above, p 22.

¹³ In 2014, OLAF analysed for the first time the arguments given to 16 of its recommendations, to look at why national authorities decided not to pursue them. Currently this analysis is only available for internal use within the Office. See note 11 above, p 23.

¹⁴ See Delmas-Marty, note 1 above, p 12.; see Spencer, note 5 above, p 78. See also COM (2011) 293 final.

¹⁵ See Spencer, note 5 above, p 80. For comparative studies undertaken since the Corpus Juris Project see the analyses of certain aspects of criminal procedure in the ‘European criminal procedures’ study conducted by Delmas-Marty and Spencer, or the ongoing project on ‘National Criminal Law in a Comparative Legal Context’ by Sieber at the Max-Planck Institute. The fiches belges of the European Judicial Network provides for a further important database. Highly valuable data has been gathered and presented in a study conducted by Ligeti, based on a comparative analysis of 27 national reports covering general aspects of criminal procedure, the attribution of investigative and prosecutorial powers, and the associated procedural safeguards of the Member States of the Union. See Delmas-Marty, M and Spencer, JR (eds), European Criminal Procedures (Cambridge University Press, 2002)Google Scholar; Sieber, U et al (eds), National Criminal Law in a Comparative Legal Context (Duncker & Humblot, 2011)Google Scholar; Ligeti, K (ed), Toward a Prosecutor for the European Union, vol 1. (Hart Publishing, 2013)Google Scholar.

¹⁶ See Spencer, note 5 above, pp 79–80.

¹⁷ See Delmas-Marty, note 1 above, p 140.

¹⁸ Ibid, pp 26, 28 and Spencer, note 5 above, pp 79–81.

¹⁹ See Spencer, note 5 above, pp 81–82. This even limited the requests for mutual legal assistance in complex procedures.

²⁰ Spencer, JR, ‘The Concept of “European Evidence”’ (2003) 4 (2) ERA Forum 29, pp 34–35 CrossRefGoogle Scholar.

²¹ See Delmas-Marty, note 1 above, p 80.

²² In any event the penalties have to be effective, proportionate and dissuasive and the national authorities must proceed, with respect to infringements of Community law, with the same diligence as that which they bring to bear in implementing corresponding national laws. Commission v Hellenic Republic, ‘Failure of a Member State to fulfil its obligations’ C-68/88, EU:C:1989:339.

²³ See Spencer, note 5 above, p 81. Article 280 TEC now forms Article 325 TFEU, obliging Member States to counter fraud and other illegal activities against the Union’s financial interests in an effective and deterrent manner by taking equal measures, as if it affected their own financial interests.

²⁴ See Delmas-Marty, note 1 above, p 12.

²⁵ Council Act [1995] OJ C316/48. The acronym ‘PIF’ is the abbreviation of the French phrase for Protéger les intérêts financiers de l’Union européenne.

²⁶ The UK was initially a party but opted out in line with Protocol 22 as from 1 December 2014. Contrastingly, the Commission recently proposed the accession of Croatia to the PIF Convention. See, COM (2015) 458-2015/0210 (NLE). See also S Peers, ‘The Italian Job: The CJEU strengthens criminal law protection of the EU’s finances’ (EU Law Analysis, 22 September 2015) http://eulawanalysis.blogspot.co.at and Spencer, note 5 above, p 81.

²⁷ Current Article 325 (4) TFEU, which replaced the former Article 280 (4) EC has scrapped the former wording.

²⁸ The PIF Convention came into force in 2002 and was fully implemented by only five Member States. See COM (2011) 293 final. For a fuller account, see note 11 above; Spencer, note 5 above, p 82.

²⁹ See Delmas-Marty, note 1 above, p 14. See also COM (2011) 293 final.

³⁰ See Delmas-Marty and Spencer, note 15 above, p 62; Spencer, note 5 above, pp 83–84; de Angelis, F, ‘L’espace judiciaire pénal européen: une vision se concrétise’ (2012) (2), eucrim 75 Google Scholar.

³¹ The study group worked under the direction of French criminal lawyer Professor Mireille Delmas-Marty; see note 1 above.

³² See Delmas-Marty, note 1 above, pp 44–48.

³³ See Delmas-Marty and Spencer, note 15 above, p 62. See also Dona, G, ‘Towards a European Judicial Area? A Corpus Juris Introducing Penal Provisions for the Purpose of the Protection of the Financial Interests of the European Union’, (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 282 CrossRefGoogle Scholar.

³⁴ The EPP was first proposed in 1996 by Klaus Hänsch, former President of the European Parliament. See ‘Ten concrete proposals to step up the fight against fraud’ presented by President Klaus Hänsch at the Interparliamentary Conference, Brussels 23 and 24 April 1996. See Delmas-Marty, note 1 above, p 84. Though the authors emphasised that setting up the EPP is not the only solution, they were convinced that it might be the best one to ensure consistent prosecution policy in a single legal area. See Spencer, note 5 above, p 86.

³⁵ The idea of a European public prosecutor emerged first in the context of EU budgetary fraud mainly committed by officials of the Community and within the European Institutions. See Delmas-Marty, note 1 above, p 84.

³⁶ See Spencer, note 5 above, p 86.

³⁷ Besides the payment of an extra sum of money the suspect would have been required to make amends for the damage or have returned the funds illegally received. See Delmas-Marty, note 1 above, p 88.

³⁸ Ibid, p 96.

³⁹ Ibid, pp 116–118.

⁴⁰ Art 26 Corpus Juris proposal, see Delmas-Marty, note 1 above, p 170.

⁴¹ Art 24 ibid, p 168.

⁴² Art 25 ibid, p 168.

⁴³ Art 27 ibid, p 170.

⁴⁴ Art 28 ibid, p 172.

⁴⁵ Framework Decision 2002/584/JHA on the European Arrest Warrant and the surrender procedures between Member States [2002] L190/1. See also interviews with Christine Van Den Wyngaert and Viviane Reding in Eurojust News (issue 8, May 2013), pp 3–6 http://www.eurojust.europa.eu/doclibrary/corporate/Pages/newsletter.aspx

⁴⁶ For an overview of the relevant measures see eg Spencer, JR ‘EU criminal law’ in C Barnard, S Peers (eds), European Union Law (Oxford University Press, 2014), pp 772–774 Google Scholar.

⁴⁷ 2002/187/JHA [2002] OJ L63/1.

⁴⁸ Article 9a (2) of 2009/426/JHA [2009] OJ L138/14. See also Luchtman, M and Vervaele, J ‘European Agencies for Criminal Justice and Shared Enforcement (Eurojust and the European Public Prosecutor’s Office)’ (2014) 10 (5) Utrecht Law Review 132 CrossRefGoogle Scholar, p 134.

⁴⁹ Delmas-Marty, M and Vervaele, JAE (eds), The Implementation of the Corpus Juris in the Member States, (Intersentia, 2000)Google Scholar, 4 vol. For the text of the Corpus Juris 2000 proposal, see https://www.jura.uni-augsburg.de/lehrende/professoren/schuhr/medienverzeichnis/Forschung/corpusjuris2000.pdf

⁵⁰ Ibid, pp 309–310.

⁵¹ Arts 25bis–25quater, Corpus Juris 2000 proposal, ibid.

⁵² Art 25ter ibid.

⁵³ See in greater detail Vervaele, J, ‘European Territoriality and Jurisdiction: the Protection of the EU’s Financial Interests in Its Horizontal and Vertical (EPPO) Dimension’, in M Luchtman (ed), Choice of Forum in Cooperation Against EU Financial Crime – Freedom, Security and Justice & the Protection of Specific EU-Interests, (Eleven International Publishing, 2013), pp 167–184 Google Scholar.

⁵⁴ Art 26, Corpus Juris 2000 proposal, see note 49 above.

⁵⁵ Green Paper on the criminal-law protection of the financial interests of the Community and the establishment of a European Prosecutor. COM (2001) 715 final.

⁵⁶ Presidency Conclusions, Tampere European Council, 15 and 16 October 1999, paras 33–37 http://www.europarl.europa.eu/summits/tam_en.htm. See also Fijnaut, C and Groenhuijsen, M, ‘A European Public Prosecutor Service: Comments on the Green Paper’, (2002) (11) European Journal of Crime, Criminal Law and Criminal Justice 321 Google Scholar. For a discussion of the extent to which the EU JHA policy has evolved over the years see Peers, S, ‘EU Justice and Home Affairs Law (Non-Civil)’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford University Press, 2011), pp 269–298 Google Scholar.

⁵⁷ See note 55 above, 5.2.

⁵⁸ Ibid, 5.1.

⁵⁹ COM (2003) 128 final.

⁶⁰ Ibid, p 16.

⁶¹ Art 310(6) TFEU and Art 325(4) TFEU.

⁶² Art 3(2) TEU and Art 67(3) TFEU.

⁶³ Art 82 TFEU.

⁶⁴ Art 83 TFEU.

⁶⁵ Art 85 TFEU, on the strengthening of Eurojust.

⁶⁶ Art 86 TFEU, on the possible establishment of an EPPO.

⁶⁷ ART III-274.

⁶⁸ Ligeti, K and Simonato, M ‘The European Public Prosecutor’s Office: Towards a Truly European Prosecution Service?’ (2013) 4 New Journal of European Criminal Law 7 CrossRefGoogle Scholar, p 21.

⁶⁹ Art 86(1) TFEU.

⁷⁰ After the legal basis had been set in the EU Treaty, the Commission conducted a study with regard to the investigative and prosecutorial powers of the EPPO in the pre-trial stage and the procedural safeguards and evidential standards governing his activities. The study group elaborated an exhaustive set of common investigative measures and laid down general principles of the EPPO’s procedure and a set of defence rights. In the later drafts however the EU legislator opted against a minimum harmonisation of the rules of procedure and evidence. For a full account see Ligeti, note 15 above. See also Ligeti, K, ‘The European Public Prosecutor’s Office: How Should the Rules Applicable to its Procedure be Determined?’ (2011) (4) European Criminal Law Review 123 CrossRefGoogle Scholar; Csúri, A, ‘Naming and Shaping. The Changing Structure of Actors Involved in the Protection of EU Finances’ (2012) 2 eucrim 79 Google Scholar; Zwiers, M, The European Public Prosecutor’s Office: Analysis of a Multilevel Criminal Justice System (Intersentia, 2011)Google Scholar; Ligeti, K, ‘The European Public Prosecutor’s Office: Which Model?’ in A Klip (ed), Substantive Criminal Law of the European Union (Maklu, 2011), p 51 Google Scholar.

⁷¹ Proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interests by means of criminal law, COM (2012) 363 final.

⁷² See note 8 above, p 4. For more detail see Kuhl, L, ‘The Initiative for a Directive on the Protection of the EU Financial Interests by Substantive Criminal Law’ (2012) 2 eucrim 63 Google Scholar.

⁷³ Opinion of the Legal Service 15309/12.

⁷⁴ See note 71 above, 3.4: legal elements.

⁷⁵ Council (6 June 2013) DROIPEN 75 10729/13

⁷⁶ Report on the proposal for a directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interest by means of criminal law http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A7-2014-0251+0+DOC+XML+V0//EN.

⁷⁷ See note 7 above, p 45.

⁷⁸ Taricco and others, C-105/14, EU:C:2015:555.

⁷⁹ On the different role of the Court in pushing legal integration within the single market and within Police and Judicial Cooperation in Criminal Matters see Hinarejos, A, ‘Integration in Criminal Matters and the Role of the Court of Justice’ (2011) 36 European Law Review 420 Google Scholar.

⁸⁰ See Peers, note 26 above.

⁸¹ See Åklagaren v Hans Åkerberg Fransson, C-617/10, EU:C:2013:105, para 26. The Court confirmed its position in Commission v Germany, C-539/09, EU:C:2011:733, paras 34 and 72. See also Arts 2, 250(1) and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax [2006] OJ L347/1.

⁸² Ibid, Åklagaren v Hans Åkerberg Fransson, para 34.

⁸³ See note 78 above, para 41.

⁸⁴ Ibid, paras 50, 52 and 58.

⁸⁵ See Peers, note 26 above.

⁸⁶ Ibid.

⁸⁷ Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, COM (2013) 534 final.

⁸⁸ Impact Assessment Accompanying the Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, SWD(2013) 275 final.

⁸⁹ Proposal for a Directive of the European Parliament and of the Council, COM (2013) 535 final. See Weyembergh, A, ‘An Overall Analysis of the Proposal for a Regulation on Eurojust’ (2013) 4 eucrim 127 Google Scholar. See also Weyembergh, A et al, ‘Competition or Cooperation? State of Play and Future Perspectives on the Relations Between Europol, Eurojust and the European Judicial Network’ (2015) (2) New Journal of European Criminal Law 258 CrossRefGoogle Scholar.

⁹⁰ COM (2013) 533.

⁹¹ See note 87 above, Art 13.

⁹² Ibid, Art 11.

⁹³ Ibid, Rec 28.

⁹⁴ Ibid, Art 32.

⁹⁵ Ibid, Art 86(2).

⁹⁶ Ibid, Art 29.

⁹⁷ See House of Lords, European Union Committee, Fourth Report: The Impact of the European Public Prosecutor’s Office on the United Kingdom, HL Paper 53, para 51 http://www.publications.parliament.uk/pa/ld201415/ldselect/ldeucom/53/5302.htm. For further reading see Wyngaert, C Van den, ‘Eurojust and the European Public Prosecutor in the Corpus Juris Model: Water and Fire?’ in N Walker (ed), Europe’s Area of Freedom, Security and Justice (Oxford University Press, 2004)Google Scholar; Costa, J, ‘Eurojust vis-à-vis the European Public Prosecutor’ in J Apap (ed), Justice and Home Affairs in the EU, (Edward Elgar Publishing, 2004), p 141 Google Scholar; Lopes da Mota, JL, ‘Eurojust: The Heart of the Future European Public Prosecutor’s Office’ (2008) (1–2) eucrim 62 Google Scholar.

⁹⁸ See House of Lords Report, note 5 above, para 1.

⁹⁹ Regulation (EC) No 1073/1999 [1999] OJ L136. See note 7 above, p 31.

¹⁰⁰ Regulation (EU, EURATOM) No 883/2013 [2013], OJ L248.

¹⁰¹ See note 7 above, p 32. See also Vervaele, J, ‘Gathering and Use of Evidence in the Area of Freedom, Security and Justice, with Special Regard to EU Fraud and OLAF Investigations’ in C Nowak (ed), Evidence in EU Fraud Cases (Wolters Kluwer Polska, 2013), pp 21–56 Google Scholar.

¹⁰² See Luchtman and Vervaele, note 48 above, pp 137–138. See also Weyembergh, A, ‘The Development of Eurojust: Potential and Limitations of Article 85 of the TFEU’, (2011) (2) New Journal of European Criminal Law 75 CrossRefGoogle Scholar.

¹⁰³ Art 3 Eurojust Proposal, see note 89 above.

¹⁰⁴ Art 86 TFEU in accordance with Art 57 EPPO Proposal (note 87 above) and Art 41 Eurojust Proposal (note 89 above).

¹⁰⁵ Coninsx, M, ‘The European Commission’s Legislative Proposal: An Overview of Its Main Characteristics’ in LH Erkelens et al (eds), The European Public Prosecutor’s Office An Extended Arm or a Two-Headed Dragon? (Springer, 2014), pp 31–32 Google Scholar. On the feasibility of enhanced cooperation for the EPPO see JJE Schutte, ‘Establishing Enhanced Cooperation Under Article 86 TFEU’ in Erkelens, ibid; S Pawelec ‘Implications of Enhanced Cooperation for the EPPO Model and Its Functioning’ in Erkelens, ibid.

¹⁰⁶ See note 87 above, Art 25.

¹⁰⁷ Ligeti, K and Weyembergh, A, ‘The European Public Prosecutor’s Office: Certain Constitutional Issues’ in Erkelens et al, see note 105 above, pp 64–67 Google Scholar.

¹⁰⁸ See HL Paper 53, note 97 above, para 17.

¹⁰⁹ See Luchtman and Vervaele, note 48 above, p 140. See also Thorhauer, NI ‘Conflicts of Jurisdiction in Cross-Border Criminal Cases in the Area of Freedom, Security and Justice. Risks and Opportunities from an Individual Rights-Oriented Perspective’ (2015) 2 New Journal of European Criminal Law 78 CrossRefGoogle Scholar.

¹¹⁰ Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters [2014] OJ L130/1.

¹¹¹ See Janssen, C, The Principle of Mutual Recognition in EU Law (Oxford University Press, 2013), p 175 CrossRefGoogle Scholar.

¹¹² See Meij, A, ‘Some Explorations into the EPPO’s Administrative Structure and Judicial Review’ in Erkelens, see note 105 above, pp 112–117 Google Scholar. See also Luchtman and Vervaele, note 48 above, p 146.

¹¹³ See HL Paper 53, note 97 above, paras 45–74. For the relation of the proposed Eurojust and EPPO regulations see C Deboyser, ‘European Public Prosecutor’s Office and Eurojust: ‘Love Match or Arranged Marriage’?’ in Erkelens, see note 105 above.

¹¹⁴ The early warning mechanism in accordance with Article 12(b) TEU is set out in Protocol (No 2) to the Treaties on the application of the principles of subsidiarity and proportionality. See also KM Lohse ‘The European Public Prosecutor: Issues of Conferral, Subsidiarity and Proportionality’ in Erkelens, see note 105 above.

¹¹⁵ House of Lords, European Union Committee, Third Report: Subsidiarity Assessment: The European Public Prosecutor’s Office, para 4 http://www.publications.parliament.uk/pa/ld201314/ldselect/ldeucom/65/6503.htm; The Senate of the Parliament of the Czech Republic 9th Term, 345th Resolution on the Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, Senate Press no. N 082/09, para 3, http://www.ipex.eu.

¹¹⁶ On 3 December 2015 a referendum decided negatively on the possibility of a selective (flexible) opt-in into EU Justice and Home Affairs. For a fuller account, see Peers, S, ‘Denmark and EU Justice and Home Affairs Law: Really Opting Back In?’ (EU Law Analysis, 8 October 2014)Google Scholar and Peers, S, ‘Denmark and EU Justice and Home Affairs Law: Details of the planned Referendum’ (EU Law Analysis, 17 March 2015) http://eulawanalysis.blogspot.co.uk/ Google Scholar.

¹¹⁷ The European Union Act, 2011, c 11 s 6 (3) prohibits any UK government from joining in a move towards introducing a European Public Prosecutor, unless it was approved by a national referendum and an Act of Parliament. See Spencer, note 1 above, p 363.

¹¹⁸ See the Czech Senate Resolution, see note 115 above, II.3.

¹¹⁹ Ibid, II.2.

¹²⁰ House of Lords Report, see note 115 above, paras 14, 18.

¹²¹ Ibid, para 13.

¹²² See note 87 above, Rec 5.

¹²³ The Council drafts have already moved on to a concept of shared competence. See Part VA1 below.

¹²⁴ COM (2013) 851 final, p 13. See also the 2013 Annual Report on Subsidiarity and Proportionality COM (2014) 506 final, para 3.

¹²⁵ Presidency Notes from the Council to the Delegations 2013/0255 (APP).

¹²⁶ On the proposals of the Greek and Italian Presidencies see Damaskou, A, ‘The European Public Prosecutor’s Office. A Ground-Breaking New Institution of the EU Legal Order’ (2015) 6 (1) New Journal of European Criminal Law 126, pp 143–149 CrossRefGoogle Scholar. See also Lohse, note 114 above, pp 171–173.

¹²⁷ http://db.eurocrim.org/db/en/doc/2404.pdf

¹²⁸ As defined in Framework Decision 2008/841/JHA and implemented in national law.

¹²⁹ Draft Council Regulation on the establishment of the EPPO, Art 20 (3), see note 127 above.

¹³⁰ Opinion of Mike Kennedy, former President of Eurojust. See HL Paper 53, note 97 above, paras 33, 36. On the collegiate model in general see White, S, ‘A Decentralised European Public Prosecutor’s Office. Contradiction in Terms or Highly Workable Solution?’ (2012) 2 eucrim 67 Google Scholar. See also note 68 above, p 13.

¹³¹ The Commission’s 2013 proposed regulation on Eurojust suggests that the powers of Eurojust will not be significantly expanded in the future.

¹³² For greater detail see Tak, PJP (ed), Tasks and Powers of the Prosecution Services in the EU Member States, vol 1 (Wolf Legal Publishers, 2004)Google Scholar.

¹³³ Draft Council Regulation on the establishment of the EPPO, Art 12, see note 127 above.

¹³⁴ Ibid, Art 15(4).

¹³⁵ See HL Paper 53, note 97 above, paras 35–37.

¹³⁶ Ibid, paras 24–29.

¹³⁷ Draft Council Regulation on the establishment of the EPPO, Art 22, see note 127 above.

¹³⁸ For further details see Ligeti, note 15 above.

¹³⁹ Article 11(1)(f) of the EIO Directive. See Armada, I, ‘The European Investigation Order and the Lack of European Standards for Gathering Evidence – Is a Fundamental Rights-Based Refusal the Solution?’ (2015) 1 New Journal of European Criminal Law 8 CrossRefGoogle Scholar. See also Luchtman and Vervaele, note 48 above, pp 141–149.

¹⁴⁰ See for instance Article 28 Hungarian Basic Law. See also Šugman, KG ‘European Public Prosecutor in the Context of the Slovenian Criminal Law’ (2004) Slovenian Law Review 123 Google Scholar, p 134.

¹⁴¹ BVerfGE 37, 271.