The ECBA follows certain EU proposals for legislation in the area of criminal justice to ensure that the rights of all citizens, including the fundamental rights of persons under investigation, suspects, accused and convicted persons are considered and respected.

From March to June 2012 the European Commission (EC) carried out a public consultation on “protecting the EU’s financial interests and enhancing prosecutions”. Since June 2012 the results of an EU funded project on the potential establishment of a European Public Prosecutor’s Office (EPPO) have been introduced to the public (www.eppo-project.eu). The research for this project relied on existing research in this field, in particular the Corpus Juris Study (2000), the “Structures and Perspectives of European Criminal Justice” and the “EuroNEEDs” (2012/2013) studies of the Max Planck Institute as well as the “Effective Criminal Defence in Europe” study of the University of Maastricht, Open Society Institute and JUSTICE (2010).

In November 2012 the ECBA was consulted and invited by the EC to comment on the current political plan to present a draft regulation on EPPO mid-2013. At the ERA conference in Trier on 17/18 January 2013 it has been again clearly expressed by several representatives of the EC including the European Anti-Fraud Office (OLAF) that the forthcoming proposal on EPPO is part of a series of initiatives which all seek to strengthen the legal framework to combat fraud (i.e. strict focus on “PIF”-crimes deducted of “protection of financial interest” of the EU). The first new measure in this regard is the proposal for a Directive on protection of the financial interests of the EU by criminal law of 11 July 2012 which is based on Art 325 par. 4 TFEU.

The main proposals of the EC concerning EPPO have become more concrete but the most crucial points of details are still open and unsolved, e.g. institutional design and organisation, “integrated and yet decentralised system”, coordination and relationship between national and European level, coordination and cooperation of EPPO at European level (Eurojust, Europol, OLAF), independence, political or democratic control and accountability, judicial control, procedural framework (national and/or European level), possible and/or necessary differences between investigative and prosecuting and trial stage of any proceeding involving the EPPO and last but not least: “Equally important for us are the procedural rights and the protection of the fundamental rights throughout the criminal investigations undertaken by the EPPO … The EU acquis could be consolidated and included to guarantee that the EPPO’s activities fully comply with the highest fundamental rights standards” (Director General DG Justice of EC Francoise Le Bail). The “EU model rules” drafted by the research project (www.eppo-project.eu) “aim at opening the debate on the procedural framework of the EPPO (and) are not conceived of as a code of European pre-trial procedure. According to Art. 86 TFEU, all aspects of setting up the EPPO must be dealt with by Regulation. Such Regulations must then detail all aspects of enforcement that the Model Rules do not include.”

The debate is now open. The legal framework for the announced draft regulation on EPPO is Art. 86 par. 1-3 TFEU, apart from the Charter of Fundamental Rights (CFREU) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the jurisprudence of the European Courts which are applicable as a minimum standard for any proceeding of the EPPO (see Art 6 TEU) as well as the directives on basis of Art. 82 TFEU following the Road Map of the Stockholm Programme since 2009, especially Measure A on translation and interpretation, Measure B on right to information including European wide Letters of Rights and potentially Measure C part 1 on access to a lawyer and Measure C part 2 on legal aid. The political expectation is that in the absence of unanimity in the Council at least nine member states wish to establish enhanced cooperation (Art. 20 TEU, Art. 329 TFEU).