Comment: Ireland must not pass up opportunity to help shape EU crime law

Following Brexit, Ireland is the sole common-law country in the EU and as such it should have a voice in the European Public Prosecutions Office

3rd November, 2020
Comment: Ireland must not pass up opportunity to help shape EU crime law
The European Public Prosecutors Office is a new EU body tasked with conducting criminal investigations and prosecutions for crimes against the EU budget. Picture: Getty

On September 28 Laura Codruța Kövesi, the European chief prosecutor and head of the new European Public Prosecutors Office (EPPO), took her oath of office at the Court of Justice of the European Union (CJEU) in Luxembourg, alongside her team of 22 European prosecutors.

EPPO is a new EU body tasked with conducting criminal investigations and prosecutions for crimes against the union’s budget. These crimes are estimated to cost the EU taxpayer €500 million annually.

Despite the manifest need, the establishment of the EPPO has been far from plain sailing.

The appointment of Codruța Kövesi was opposed by her own national government in Romania, despite her having gained much respect across the EU and further afield for her dogged pursuit of senior political figures.

These figures included some from the Social Democratic Party (PSD), which now heads the government in Bucharest. Indeed, Codruța Kövesi was forced out of her position as head of the National Anti-Corruption Directorate by the PSD government.

Despite this opposition, she was voted into her position by the Council of the European Union and the European Parliament, and earlier this year the European Court of Human Rights ruled that her removal from the position in Bucharest had been wrongful.

Meanwhile in Valetta, the new Maltese government, having come to power after the assassination of investigative reporter Daphne Caruana Galizia which brought into question the judicial system in the island nation, procrastinated on nominating prosecutors to be reviewed for appointment by the independent panel tasked with overseeing the selection of prosecutors to the EPPO.

Further, when the recommendations of that independent panel were brought to the Council of the European Union, the selections made concerning the candidates from Belgium, Bulgaria and Portugal were ignored and different candidates appointed. No reasons were given for this snub, causing much disquiet in legal circles.

The new body to be overseen by Codruța Kövesi has been established by means of an enhanced cooperation procedure provided for under Article 86 of the Treaty on the Functioning of the European Union (TFEU), otherwise known as the Lisbon Treaty.

Ireland, along with Denmark, has an opt-out in the Area of Freedom, Security and Justice, and both countries have exercised their opt-outs in this instance, while Sweden, Poland and Hungary have also decided not to participate in the body at this time. Ireland does retain the option, however, to participate in the future under the provisions of Protocol 21 to the TFEU.

While acknowledging in interviews that the body will proceed with the prosecutors nominated by the 22 participating states, the chief prosecutor has also stated that the EPPO “will investigate certain offences committed in relation to these member states, their citizens or on the territory of those member states”.

These comments may have been perceived by many to be addressed at the governments in Warsaw and Budapest who are refusing to allow the linkages of cohesion funding and compliance with rule-of-law guarantees but they are noteworthy for Ireland as well as those countries.

There were also rumblings during the recent Austrian presidency of the EU of extending the remit of the EPPO beyond solely investigating financial crimes against the EU budget to also encompass terrorism matters.

Ireland’s position to opt out of the EPPO makes sound legal sense. A constitutional referendum would be necessary should we seek to join the body and, furthermore, our common-law legal system is quite different from the civil-law systems of continental Europe. That latter fact may be the very reason why we need to be involved, however, even if it is by means of some type of external partnership like our membership of the Partnership for Peace and the Euro-Atlantic Partnership Council with Nato.

Following Brexit, Ireland is the sole common-law country in the EU. While Malta and Cyprus operate hybrid systems, Ireland’s system is very different from that of our European brethren.

European bodies tend to expand rather than shrink, as evidenced by the European Coal and Steel Community itself which transformed into the EU we know today. The practices and procedures being developed and implemented currently are being transposed from a purely civil-law perspective with no UK presence to argue for the difference of our legal tradition and methods. Like any state body, particularly a body related to the law, those practices and procedures will be the foundation stones of the EPPO and will be hard to reform should Ireland join the body later.

In response to a recent parliamentary question, Minister for Justice Helen McEntee said: “The EPPO regulation provides for the EPPO and the Commission putting in place arrangements for cooperation between the EPPO and the non-participating member states. Discussions in respect of these arrangements are continuing between member states and on a bilateral basis as well as between Ireland and the EPPO.”

Ireland has been clever and deft in its dealings with the EU over the years. The signing of a letter of intent earlier this year, however, by 21 EU countries plus the UK and Norway to set up an EU intelligence agency along with the establishment of the EPPO attests to cooperation in the security and justice fields progressing at pace.

We need to have a strong Irish common-law voice present in the building as the EPPO moves into fully fledged functionality. If this opportunity is missed we may come to regret it in years to come. Ní neart go cur le chéile.

Aonghus Kelly is the executive director of the Irish Rule of Law International

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