Sunday, 18 April 2010

The European Public Prosecutor

According to Article 86 of the Treaty on the Functioning of the European Union (TFEU), the EU will get a European Public Prosecutor.

In a short information document prepared by DG H 2B in the Council secretariat, the Spanish EU Council Presidency summarises the background of this new EU office introduced by the Lisbon Treaty.

The document ends with two questions. The first question just asks how to put in place the European Public Prosecutor's Office, but the second is much more interesting:
Is it appropriate to consider the possibility provided for in Article 86(4) right from the start of that procedure?
For those of you who don't know the two Lisbon Treaties (TEU & TFEU) by heart already, here's the respective paragraph:
Article 86 para 4 TFEU

The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
In other words, the Spanish Council Presidency is asking the member states whether they want to extend the powers of the European Public Prosecutor right from the beginning.

If agreed, this would make him responsible for all "serious cross-border crimes", powers he hasn't been given right away by the Lisbon Treaty. Paragraph 1 of Article 86 so far only gives him power to "combat crimes affecting the financial interests of the Union".

The answers given by the member states will thus pretty much be an indicator how much they are willing to delegate powers in the field of criminal justice to the European Union.


martinned said...

I highly doubt that this is going to happen. As is normal for such "passerelles", unanimity is required in the Council for a decision under art. 86(4) TFEU, and there has to be at least one MS (the UK under Cameron?) who will block this on general principle alone.

Julien Frisch said...

Good point, although I wonder why the Presidency would ask the question when it knew that the answer was no.

Maybe it's just to have it on paper...

martinned said...

They could have put the idea out there as a bargaining chip, in order to allow them to give it away later in the negotiations.

Also, there's the factor of the enhanced cooperation envisaged in the 3rd par. of art. 86(1). I don't think that covers the stuff of art. 86(4), but bringing up the passerelle might be a good way to get started on getting those 9 MS together for the purposes of section 1. (All those who respond positively to the idea of passing this passerelle would presumably also join any enhanced cooperation in this area.)