1st June 2021 : Birth of the European Public Prosecutor’s office … And death of the French juge d’instruction ?

Flash Info – 2 June 2021 [1]

After a six-month delay, the European Public Prosecutor’s Office (EPPO), created by the European Regulation dated 12 October 2017 [2] and, in France, by the Law dated 24 December 2020 [3], started its activities on Tuesday 1stJune 2021.

A two-level supranational Prosecutor’s office

The central level of the EPPO, located in Luxembourg, comprises the European Chief Prosecutor and a College of 22 European Prosecutors, one per each participating Member State. 5 Member States (Denmark, Hungary, Ireland, Poland and Sweden) remained out.

Since 16 October 2019 and for a 7-year not renewable term, the position of Chief Prosecutor has been held by Mrs Laura Codruţa Kövesi, former General Prosecutor in Romania and Chief Prosecutor of the Romanian National Anticorruption Directorate. She is now heading and representing the EPPO.

The European Prosecutors, in charge of the supervision and coordination of criminal investigations and forming the College of European Prosecutors, were appointed by the Council of the European Union on 27 July 2020. For France, Mr Frédéric Baab, former representative of France at Eurojust, was appointed for a 6-year not renewable term.

The EPPO also has a decentralised level made up of European Delegated Prosecutors (EDP) located in each of the participating EU countries and in charge of investigating, prosecuting and bringing to judgement cases where the financial interests of the European Union are at stake.

Among the 88 EDP already appointed, 4 have been appointed for France : Mr Emmanuel Chirat, former former Deputy Prosectur of the French Financial Prosecutor’s office (PNF) ; Mrs Cécile Soriano, former Administrator at the European Commission’s financial crime unit ; Mr David Touvet, former Advocate General at the Court of Appeal in Nancy ; and Mrs Mona Popescu, former Deputy Prosecutor at the Judicial Court in Bordeaux.

An extensive jurisdiction

The EPPO shall be responsible for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices to, criminal offences affecting the financial interests of the European Union which are provided for in Directive (EU) 2017/1371 [4], such as misappropriation of European funds, active and passive bribery, transnational VAT fraud when it involves at least two Member States and when more than EUR 10 million are at stake, custom offences and related money laundering.
According to the impact assessment carried out at the request of the French Government, from 60 to 100 cases per year may be transferred from the French PNF, specialised interregional courts (JIRS) or customs to the EPPO.

The EPPO, which has just been created, is already under discussion as to whether its jurisdiction should be extended to cover other offences such as terrorist ones.

French Prosecutors with superpowers

The EDPs with territorial jurisdiction leads the required investigations within each Member State in compliance with their national procedural law.

In France, an unprecedented procedural framework has been created, mixing investigations (enquête) and judicial inquiry (instruction préparatoire).

The 4 EDPs carry out the duties of the Public Prosecutor and those of the Advocate General at the Court of appeal.

Furthermore, when it is necessary to indict a person (mise en examen), to place him/her under the status of assisted witness (témoin assisté) or to perform investigative measures that can only be ordered during a judicial inquiry (instruction préparatoire), the EDP leads the inquiry in compliance with the provisions applicable to it [5], without any judicial remedy against the procedural framework that has been chosen.

The EDP replaces the investigating judge (juge d’instruction), who is no longer involved. The EDP can take all appropriate decisions in his place regarding indictment (mise en examen), interviews and confrontations, hearing of witnesses, admissibility of civil claims and hearing of the plaintiff (recevabilité de la constitution de partie civile et audition de la partie civile), transport, letters rogatory (commission rogatoire), forensic investigations, judicial supervision (contrôle judiciaire), search warrants and summons.

To some extent, the EDP has even broader powers than the investigating judge as he/she avoids, during an inquiry, the evocation power of the Paris Chambre de l’instruction [6]. It should be noted however that the power to take a house arrest (assignation à résidence) or to issue arrest warrants (mandats d’arrêt) is assigned to the custody judge (juge des libertés et de la détention) who also keeps jurisdiction on pre-trial custody [7].

At the end of the inquiry, the EDP will decide on the direction of the case and issue an order in the same way as an investigation judge, under the supervision of a Permanent Chamber, which consists of the Chief Prosecutor and 2 European Prosecutors. In accordance with the decision taken by the Permanent Chamber, the EDP can close the case, bring the case to judgement before the Paris criminal court or propose alternative measures to prosecution (French guilty plea or deferred prosecution agreement) [8].

A requiem for the French investigating judge?

In short, the EPPO is a new procedural hydra that practitioners will have to learn and deal with and that the defence will have to secure its position against.

Quick reactions are all the more necessary as this new type of Prosecutor somewhat acts as a laboratory for the radical changes that some people have been willing to implement in French criminal procedure for some time now.

Among those changes, there is of course the highly questionable project to do away with the investigating judge. This figure of the judicial landscape, presented as dying, is nevertheless still present in 10 of the 22 Member States that created the EPPO.

At the beginning of June 2021, as the European Prosecutors are giving their first cry, some people may think they hear the last sighs of other magistrates… Future will tell if that was a mistake.

[1] Our thanks to Mathieu Lanteri for his help in preparing this newsletter.
[2] Council Regulation (UE) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office.
[3 Act n° 2020-1672 of 24 décembre 2020 relating to EPPO, environmental justice and specialised criminal justice.
European Parliament and Council Directive (UE) 2017/1371 of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law, transposed in French law by the Act n° 2019-693 of 18 September 2019 on the fight against fraud to the Union’s financial interests by means of criminal law.
[5] Article 696-114 of the French code of criminal procedure.
[6] Article 696-110 of the French code of criminal procedure.
[7] Articles 696-120 and 696-124 of the French code of criminal procedure.
[8] Article 696-132 of the French code of criminal procedure; article 35 of the Regulation of 12 October 2017.
* * * * *

Our team remains at your disposal for any question relating the EPPO.

Your contacts:

KIRIL BOUGARTCHEV, Avocat à la Cour, Associé gérant, Ancien secrétaire de la Conférence

EDWARD HUYLEBROUCK, Avocat à la Cour, Ancien secrétaire de la Conférence