¹ Proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office, COM (2013) 534 final (July 17, 2013) [hereinafter EPPO Proposal]. Google Scholar

² Treaty of Lisbon on the Application of the Principles of Proportionality and Subsidiarity, Mar. 30, 2010, 2010 O.J. (C 83) 206 [hereinafter Lisbon Treaty].Google Scholar

³ Id. art. 4.Google Scholar

⁴ Id. art. 6.Google Scholar

⁵ Id. art. 7.Google Scholar

⁶ See Louis, Jean-Victor, The Lisbon Treaty: The Irish “No”: National Parliaments and the Principle of Subsidiarity-Legal Options and Practical Limits, 4 Eur. Const. L. Rev. 438 (2008).Google Scholar

⁷ See Libson Treaty art. 7(1). It can be European Parliament, the Council and the Commission, a group of Member States, the Court of Justice, the European Central Bank, or the European Investment Bank.Google Scholar

⁸ Id. art. 7(2). On the functioning of the EWM in detail, see Kiiver, Philip, The Early Warning System for the Principle of Subsidiarity: Constitutional Theory and Empirical Reality ch. 3-4 (2012).Google Scholar

⁹ Communication on the Review of the Proposal for a Council Regulation on the Establishment of the European Public Prosecutor's Office with Regard to the Principle of Subsidiarity, in Accordance with Protocol No 2, COM (2013) 851 final (Nov. 27, 2013) [hereinafter Communication on the Review of the Proposal].Google Scholar

¹⁰ Proposal P7_TA-PROV(2014)0234 has now been approved within the Parliament. Note that the Greek Government submitted two alternative proposals for an EPPO that are currently under negotiations in the Council. See Doc. 9834/1/14 REV 1; Doc. DS 1154/14.Google Scholar

¹¹ See Draft Treaty Establishing a Constitution for Europe, art. 3–274, Jan. 13, 2005, 2004 O.J. (C 310) 121.Google Scholar

¹² Mireille Delmas-Marty & John A.E. Vervaele, The Implementation of the Corpus Juris in the Member States 1-4 (Delmas-Marty, Mireille & John A.E. Vervaele eds., 2000).Google Scholar

¹³ See Treaty on the Functioning of the European Union, art. 86, Oct. 26, 2012, 2012 O.J. (C 326) 82 [hereinafter TFEU].Google Scholar

¹⁴ 2012 O.J. (C 326) 299.Google Scholar

¹⁵ 2012 O.J. (C 326) 295.Google Scholar

¹⁶ EPPO Proposal, supra note 1. For an extensive comment on the proposal, see Ligeti, Katalin & Weyembergh, Anne, The European Public Prosecutor's Office: Certain Constitutional Issues, in The European Public Prosecutors Office 53 (Leendert H. Erkelens et al. eds., 2014).Google Scholar

¹⁷ EPPO Proposal, supra note 1, at preamble recital 5.Google Scholar

¹⁸ Id. art. 16.Google Scholar

¹⁹ Id. art. 27.Google Scholar

²⁰ One of the main drawbacks of the current setting is that OLAF's investigations are not given follow up in Member States. See The Commission Staff Working Paper of 26 May 2011, at 7, SEC (2011) 621 final (May 26, 2011); see also 11th Operational Report of the European Anti-fraud Office (OLAF), Jan. 1-Dec. 31, 2010, http://ec.europa.eu/anti_fraud/about-us/reports/olaf-report/index_en.htm (last visited Mar. 21, 2014), http://bookshop.europa.eu/en/eleventh-operational-report-of-the-european-anti-fraud-office-pbOBAC11001/.Google Scholar

²¹ Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust), COM (2013) 535 final (July 17, 2013) [hereinafter Proposal for a Regulation Of the European Parliament]. Google Scholar

²² Article 85(1) TFEU applied to Eurojust would allow the attribution of some limited binding powers to Eurojust National Members. Yet in the reform for Eurojust, the Commission made a political choice not to implement this possibility and rather to opt to simply further approximate the powers of the national members of Eurojust. See Ligeti & Weyembergh, supra note 16, at 60.Google Scholar

²³ EPPO Proposal, supra note 1, at art. 12.Google Scholar

²⁴ 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 (Nov. 7, 2012). On the directive proposal, see Kuhl, Lothar, The Initiative for a Directive on the Protection of the EU Financial Interests by Substantive Criminal Law, Eucrim 2, 63 (2012), https://eucrim.mpicc.de/archiv/eucrim_12-02.pdf.Google Scholar

²⁵ Fight Against Fraud to the European Union's Financial Interests by Means of Criminal Law, art. 3, COM (2012) 363 final [hereinafter PIF Directive]. Google Scholar

²⁶ Id. art. 4.Google Scholar

²⁷ EPPO Proposal, supra note 1, at art. 11(4).Google Scholar

²⁸ EPPO Proposal, supra note 1, at art. 25.Google Scholar

²⁹ More specifically, the English version was available upon publication; however, it took quite long for the Commission to deliver its translation into all official EU languages; the lettre de saisine was only sent on August 21. See Note d'information au secretariat general du conseil application du principe de subsidiarite, D/13431, SG-Greffe (2013), http://www.ipex.eu/IPEXL-WEB/dossier/document/COM20130534.do (last visited Sept. 22, 2014).Google Scholar

³⁰ All the reasoned opinions and the observations sent by National Parliaments in the framework of the Political consultation are available on IPEX, both in the original language and in English. IPEX, http://www.ipex.eu/IPEXL-WEB/dossier/document/COM20130534.do#dossier-APP20130255 (last visited Sept. 22, 2014). Hereinafter all the National Parliaments reasoned opinion will be referred using the abbreviation indicating the relevant Member State. E.g. the reasoned opinion of the UK House of Lord will be indicated as “UK_I”, when relevant, the page or the point within the given reasoned opinion will also be indicated.Google Scholar

³¹ Lisbon Treaty art. 7(2).Google Scholar

³² Communication on the Review of the Proposal, supra note 9.Google Scholar

³³ Certain National Assemblies discuss the proportionality of the regulation, and they argue that the regulation is in general too far reaching, and it goes beyond what is necessary to achieve its objective (SE, 1 SI, 2). Aspects such the integrated structure of the EPPO, as opposed to a collegial form (FR, 3 and PL) are considered disproportionate. Moreover, it is somehow oddly recalled how criminal law is a national competence and therefore the European Public Prosecutor's Office's powers are in general too far-reaching and should be reserved to national authorities (IE, pt. 5(a), HU, MT, pt. 2.2, NL I, 1 and NL II,1). Finally the Swedish Parliament pinpoints as a problem the fact that the EPPO establishment will have an important impact on national legislation, and national operations (SE, 1).Google Scholar

³⁴ The Czech Parliament (CZ, pt.6), the UK House of Common (UK II, pt.17), as well as the Cyprus Parliament (CY,4) raise the issue of the respect of fundamental rights by the EPPO, as enshrined in the Charter and in the Czech Constitutional Court.Google Scholar

³⁵ The Hungarian parliament argues that the Commission went beyond in its proposed regulation of what is permitted in the legal basis, as Article 86 TFEU did not mandate for establishing a European Public Prosecutor with an exclusive competence (HU).Google Scholar

³⁶ RO, pt. 10.Google Scholar

³⁷ The French Senate points out that it will be easier that a proposal including a non-collegiate structure will be approved, FR, 3.Google Scholar

³⁸ The Regulation would create disadvantages for Member States in that they lose the capacity to prioritize prosecution activities within their own criminal justice systems, and how to allocate resources (UK I, pt. 14, UK II, pt. 17, and NL I, 2 and NL II, 2) The Hungarian assemblies states that the exclusive right of instruction might be hard to coordinate with a system of delegated prosecutors, finally other Parliaments considers the double hat system for delegated prosecutors, working as both EPPO officials and national officials would be impractical (RO, pt. 9 and HU), and it is not clear how to deal with a possible conflict (NL I, 2).Google Scholar

³⁹ Communication on the Review of the Proposal, supra note 9, at 5.Google Scholar

⁴⁰ Antonio Estella, The EU Principle of Subsidiarity and its Critique 105 (2002).Google Scholar

⁴¹ Id. Google Scholar

⁴² HU.Google Scholar

⁴³ UK II, pt. 8.Google Scholar

⁴⁴ Case 58/08, The Queen v. Sec'y of State for Bus., Enter, and Regulatory Reform, 2010 E.C.R. I-04999.Google Scholar

⁴⁵ Communication on the Review of the Proposal, supra note 9, at 6.Google Scholar

⁴⁶ On the first two steps of the subsidiarity test see explicitly Protocol (30) on the Application of the Principles of Subsidiarity and Proportionality, annexed to the Treaty on the European Community, art. 13, 1997 O.J. (C 340) 105 (introducing these steps in assessing whether EU was justified—complying with material subdidiarity). They were not included in the Lisbon Protocol on subsidiarity; however, the Commission stated it will continue to apply these guidelines also after the entry into force of the Lisbon Treaty. See The Report from the Commission on Subsidiarity and Proportionality, 18th Report on Better Law-Making Covering the Year 2010, at 2, COM (2011) 344 final (June 10, 2011).Google Scholar

⁴⁷ Advocate General Maduro advocated that the EU should be allowed to act whenever “the cross-border nature of the economic activity … renders the [EU] legislator potentially more apt than national authorities to regulate the field given the failure of the national political processes to protect these interstate activities” introducing, arguably, a third cross-border step within the subsidiarity test, in addition to the first two efficiency based ones. See Opinion of the Advocate General in case 58/08 (supra note 44) at para. 24.Google Scholar

⁴⁸ Kiiver, supra note 8, at 100.Google Scholar

⁴⁹ CY, 2 CZ, pt.1 RO, pt. 10, SE, 1.Google Scholar

⁵⁰ RO pt. 8, MT pt. 2.3, SI, 1.Google Scholar

⁵¹ Communication on the Review of the Proposal, supra note 9, at 4.Google Scholar

⁵² See The Impact Assessment, Accompanying the Proposal for a Council Regulation on the Establishment of the European Public Prosecutor's Office, at 27, COM (2013) 534 final, (July 17, 2013) (“Against this background, it is clear that the Union not only has the competence but also the obligation to act.”).Google Scholar

⁵³ See TFEU art. 5 (“Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”).Google Scholar

⁵⁴ It is noteworthy that traditionally legislation Impact Assessment contains as a first option that of “taking no action,” and so does the Impact Assessment for the EPPO, making explicit that the presence of a legal basis does not entail per se an obligation to act. See supra at note 52.Google Scholar

⁵⁵ Proposal for a Regulation of the European Parliament, supra note 21.Google Scholar

⁵⁶ Interestingly, in its reaction to the Commission Response Communication, the European Scrutiny Committee of the UK House of Commons precisely points out that the Commission has failed to justify the mere fact of having taken action, and it points out that the provision is phrased as granting an option and not an obligation to act. See Commission Communication on the Review of the Draft Regulation on the Establishment of the European Public Prosecutor's Office with Regard to the Principle of Subsidiarity in Accordance with Protocol No. 2, pt. 8.34, COM (2013) 851 final (Nov. 27, 2013), http://www.publications.parliament.uk/pa/cm201314/cmselect/cmeuleg/83-xxviii/8312.htm (last visited Sept. 22, 2014).Google Scholar

⁵⁷ IE 2, CZ pt. II-1, 4, SE 2, RO pt. 10, UK_I, pt. 14, UK_II, pt. 15.Google Scholar

⁵⁸ See Davies, Garreth, Subsidiarity: The Wrong Idea, in the Wrong Place, at the Wrong Time, 43 Common Mkt. L. Rev. 63–84 (2006) (marking a clear distinction between the two tests).Google Scholar

⁵⁹ On the merit of this approach, see Kiiver, supra note 8, at 99, who advocates a broad reading of the scope of application of the Early Warning Mechanism linking proportionality to subsidiarity.Google Scholar

⁶⁰ Communication on the Review of the Proposal, supra note 9, at 7–8.Google Scholar

⁶¹ SI, 2Google Scholar

⁶² SE, 2.Google Scholar

⁶³ Communication on the Review of the Proposal, supra note 9, at 6–7.Google Scholar

⁶⁴ Lenaerts, Koen, Subsidiarity and Community Competence in the Field of Education, 1 Colum. J. Eur. L. 1, 22 (1994).Google Scholar

⁶⁵ Mikkinen, Panu, If Taken in Earnest: Criminal Law Doctrine and the Last Resort, 45 Howard J. Crim. Just. 521, 524 (2006).Google Scholar

⁶⁶ Ashworth, Principles of Criminal Law 31 (7th ed. 2009).Google Scholar

⁶⁷ Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, OJ C 316, 27/11/1995 P. 0049–0057, Art. 1.Google Scholar

⁶⁸ See Donini, Massimo, Sussidiarietà penale e sussidiarietà comunitaria, 1 Rivista Italiana di Diritto e Procedura Penale 141, 171 (2003).Google Scholar

⁶⁹ The principle of ultima ratio cannot be found as such in national constitutions; however, some constitutional courts have referred to it in their judgements. See Court, Portuguese Constitutional, Case No. 179/12, 78 Diário da Repüblica (Official Gazette) 2206 (Apr. 19, 2012), http://www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/por/por-2012-1-008?f=templates$fn=document-frame.htm$3.0 (providing an English summary); http://www.codices.coe.int/NXT/gateway.dll/CODICES/full/eur/por/por/por-2012-1-008?f=templates$fn=document-frame.htm$3.0#JD_Full_POR_POR-2012-1-008 (providing a Portuguese summary); Lithuanian Constitutional Court, Case No. 01/04 (Nov. 10, 2005).Google Scholar

⁷⁰ See supra Part B.I.Google Scholar

⁷¹ CZ pt. 2, HU, RO pt. 10, NL_I and NL_II 1, UK_II pt. 16, and UK_I pt. 14. Remarkably, the Maltese House of Representatives identifies some benefits in establishing an EPPO, MT, pt. 2.3.Google Scholar

⁷² UK_I pt. 14.Google Scholar

⁷³ The political dialogue that includes consultation of National Parliaments before the publication of a legislative proposal was introduced by the Barroso Commission in 2006. See A Citizens’ Agenda—Delivering Results for Europe, COM (2006) 211 final (Oct. 5, 2006).Google Scholar

⁷⁴ The German Bundesrat raised this point in the framework of the political dialogue that preceded the adoption of the proposal. For the text of the German Parliament see supra note 30.Google Scholar

⁷⁵ See supra notes 14–15.Google Scholar

⁷⁶ See EPPO Proposal, supra note 1, at preamble recital 5 (presenting fragmentation of prosecution as the main problem at the national level); id. at art. 25 (speaking of a single EU legal area).Google Scholar

⁷⁷ Ligeti & Weyembergh, supra note 16.Google Scholar

⁷⁸ Communication on the Review of the Proposal, supra note 9, at 8–9.Google Scholar

⁷⁹ See supra notes 13–14.Google Scholar

⁸⁰ TFEU arts. 82(3) & 83(3).Google Scholar

⁸¹ See Communication on the Review of the Proposal, supra note 9, at 10.Google Scholar

⁸² CZ, p. 2. See also RO, p. 3. And NL Senate p. 1, where it states that fraud offenses against the financial interests of the EU mainly have a national and local dimension.Google Scholar

⁸³ Daniel Flore, Droit Pénal Européen—Les enjeux d'une justice pénale Européenne 31 (2009).Google Scholar

⁸⁴ See generally Treaty on European Union on the Fight Against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union, art. K.3(2)(c), May 26, 1997, 1997 O.J. (C 195) 2.Google Scholar

⁸⁵ See Mitsilegas, EU Criminal Law 109 (2009).Google Scholar

⁸⁶ The PIF directive mentioned in Section B was proposed on the basis of this provision.Google Scholar

⁸⁷ See Communication on the Review of the Proposal, supra note 9, at 11.Google Scholar

⁸⁸ Less than twenty cases concerning compliance with subsidiarity of EU legislative instruments were referred to Luxemburg, and the Court has showed a considerable self-restrain in judging subsidiarity compliance in each of them. It has limited the control to assessing procedural subsidiarity aspects that is if all the procedural steps, for instance consultation steps have been complied with, while refraining from judging on the material aspects, that is if the substance of subsidiarity had been respected. See Craig, Paul, Subsidiarity: A Political and Legal Analysis, 50 J. Common Mkt. Stud. 72 (2012).Google Scholar

⁸⁹ For the legal and political nature of subsidiarity, see generally Gráinne de Bürca, Reappraising Subsidiarity's Significance After Amsterdam (Harvard Jean Monnet Working Paper No. 7/99, 1999).Google Scholar

⁹⁰ On the lack of legitimacy for the Court of Justice to rule on subsidiarity questions, see Fabbrini, Frederico, The Principle of Subsidiarity, in The Oxford Principles of EU Law (Tridimas, Takis & Reiner Schultze eds., 2015).Google Scholar

⁹¹ See supra note 8 and accompanying text.Google Scholar

⁹² See Birkinshaw, Patrick, A Constitution for the European Union—A Letter from Home, 10 EPL 73 (2004) (showing the UK support for the introduction of a red card procedure when discussing the Draft Constitutional Treaty). Authors also pointed out other factors that contribute to weaken the efficiency of the system. These factors concern strict time constraints for the national parliaments to form an opinion and the information gap between the Parliaments and the Commission. See Bermann, George, National Parliaments and Subsidiarity: An Outsider's View, in Ceci n'est pas une Constitution—Constitutionausation without Constitution? 155 (Ingolf Pernice et al. eds., 2008); Bergmann, George, The Lisbon Treaty: The Irish No, 4 Eur. Const. L. Rev. 159 (2008); Peters, Jit, National Parliaments and Subsidiarity: Think Twice, 1 Eur. Const. L. Rev. 66, 71 (2005); Kiiver, Philip, Implementing the Early Warning Mechanism for Subsidiarity: National Parliaments Beyond the Constitutional Treaty (June 13, 2007) (conference paper), http://www.swp-berlin.org/de/common/get_document.php?asset_id=4123.Google Scholar

⁹³ With respect to the Early Warning Mechanism introduced with the Constitutional Treaty, Peters argued that the Commission would have been more sensitive to the political background of the objections rather than to their actual substance. See Peters, supra note 92, at 171. The assumption is of course that governments will vote in the Council in the same way that national Parliaments did in the framework of the Early Warning Mechanism. See, however, De Hert who highlights how in the past especially in the criminal fields, national governments reunited in the Council exploited the European level to have some delicate matters approved at EU level, bypassing in this way national parliaments that were faced with the fait accompli and the obligation to implement. Paul De Hert, Division of Competencies Between National and European Levels with Regard to Justice & Home Affairs, in Justice and Home Affairs in the EU-Liberty and Security Issues after Enlargement 55, 65 (Joanna Apap ed., 2004); see also Cooper, Ian, Bicameral or Tricameral? National Parliaments and Representative Democracy in the European Union, 35 J. Eur. Integration 531 (2013) (explaining why national Parliaments could have an independent position from the one of their government, due to the presence of minority parties).Google Scholar

⁹⁴ Council Regulation on the Exercise of the Right to Take Collective Action Within the Context of the Freedom of Establishment and the Freedom to Provide Services, COM (2012) 130 final (March 21, 2012).Google Scholar

⁹⁵ See, e.g., The Letter from the Commission to the Italian Upper Chamber, Ares 1058907 (Sept. 12, 2012).Google Scholar

⁹⁶ See Letter by President Barroso to the President of the European Parliament, Mr. Martin Schultz, Memo 12/661 (Sept. 12, 2012).Google Scholar

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⁹⁸ Fabbrini, supra note 90, at Part V.Google Scholar

⁹⁹ See supra Part B.Google Scholar

¹⁰⁰ See supra note 10.Google Scholar

¹⁰¹ See Follow-Up Report on the Green Paper on Criminal-Law Protection of the Financial Interests of the Community and the Establishment of a European Prosecutor, COM (2003) 128 final (Mar. 19, 2003).Google Scholar

¹⁰² Supra note 46 and accompanying text. This is without counting UK and IE which, given their opting out position, are not counted for unanimity. To the objecting Member states also Finland should be added, which did not consider the proposal breaching subsidiarity, but it made clear in the framework of the political consultation that this does not necessarily imply that the Finnish government would not vote against the proposal in the Council. For the relevant documents, see supra note 37.Google Scholar

¹⁰³ FR, 2 MT, pt. 2.1.Google Scholar

¹⁰⁴ These included Germany, Italy, Lithuania, Poland, Portugal, and Spain. Austria did not explicitly endorse the EPPO project but when identifying four points that deserve special attention in future negotiations it implicitly did so, for the relevant documents, see supra note 37.Google Scholar

¹⁰⁵ In some cases, national parliaments did not submit opinion simply because they were busy with internal matters. For instance, in Estonia elections were running at the moment; therefore, their position on the matter is hard to guess.Google Scholar

¹⁰⁶ See the Parliamentary question to the Council on the outcome of the yellow card against the EPPO where the EUobserver is quoted: http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2013-013913&language=EN (last visited Sept. 22, 2014).Google Scholar

¹⁰⁷ The UK House of Commons raises this point, see the opinion of the European Scrutiny Committee of the UK House of Commons on the Response Communication, supra note 56, at pt. 8.30.Google Scholar

¹⁰⁸ See supra note 81.Google Scholar

¹⁰⁹ See supra Part F (discussing enhanced geographical fragmentation); supra Part E (discussing the special implications of dealing with criminal matters). On Subsidiarity and the AFSJ, see Herlin-Karnell, Ester, Subsidiarity in the Area of EU Justice and Home Affairs—A Lost Cause?, 15 Eur. L. J. 351 (2009).Google Scholar

¹¹⁰ On subsidiarity in the Area of Freedom Security and Justice, and On Subsidiarity and the AFSJ, see Herlin-Karnell, supra note 109; Hert, Paul De & Wieczorek, Irene, Testing the Principle of Subsidiarity in EU Criminal Policy-The Omitted Exercise in the Recent EU Documents on Principles for Substantive European Criminal Law, 3 New J. Eur. Crim. L. 393 (2012).Google Scholar

¹¹¹ Admittedly, discussion on various aspects of the proposal already takes place during the political dialogue, which is a framework for a spontaneous and voluntary-based exchange of views between the Parliaments and the Commission, and which takes place before the official proposal for legislation has already been published. Yet, the political dialogue broadly encompasses subsidiarity issues, as well as proportionality issues, conferral, and political accountability aspects. The advantage of the EWM is the special focus on the principle of subsidiarity and the actual obligation for the Commission to deliver its opinion on the point, which makes it a unique occasion to have a clearer vision also on the position of the Commission on the substance of subsidiarity. For a discussion on the political dialogue and a comparison with the EWM, see Jančić, Davor, The Barroso Initiative: Window Dressing or Democracy Boost?, 8 Utrecht L. Rev. 78, 82–83 (2012).Google Scholar

¹¹² The tension between input and output legitimacy is authoritatively elaborated in Fritz Scharpf, Governing in Europe: Effective and Democratic? (1990). On the point, and specifically on the necessary equilibrium between the two for the overall legitimacy of the EU, see also Weatherill, Stephen, Competence and Legitimacy, in The Outer Limits of European Union Law (Barnard, Catherine & Okeoghene Odudu eds., 2009).Google Scholar

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¹¹⁴ See supra Part H.Google Scholar

¹¹⁵ For an appraisal of the lack of red card procedure, see Weatherill, Stephen, Using National Parliaments to Improve Scrutiny of the Limits of EU Action, 28 Eur. L. Rev. 909, 912 (2003).Google Scholar

¹¹⁶ See Kiiver, supra note 8, at 148, who recalls that the EWM is there for a reason, that is to ensure that EU legislation is not adopted at all costs but only when it is constitutionally justified to do so, and that is a objective one cannot neglected in a system, as the EU one, where the EU legislator cannot legislate in a cavalier manner on the basis of general competences as if it were in a unitary state.Google Scholar