Art:10 1007/BF02817584 PDF

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Editorial Corpus Juris
ERA - Forum -
At the seminar of 13.15 September which concluded the study,

a "Declaration of Trier" was issued. This declaration, which found
the support of all study participants, is appended to this editorial.
The Protection of the Financial Interests of the

EU in the Candidate States.
Perspectives on the Future of Judicial
Integration in Europe.
Christine Van den Wyngaert*
INTRODUCTORY CHAPTER
CHAPTER I - OFFENCES
a. Introduction
b. Comparative analysis candidate states
I. EC-fraud and assimilated offences
2. Market-rigging
3. Money laundering and receiving
4. Conspiracy and membership of a criminal
organisation
5. Corruption
6. Misappropriation of funds
7. Abuse of office
8. Disclosure of professional secrets
9. Counterfeiting the Euro
c. Conclusions and recommendations
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CHAPTER 2 - CRIMINAL RESPONSIBILITY

a. Introduction
I, Responsibility of natural persons
2. Responsibility of heads of businesses
3. Responsibility of organisations
4. Principle of culpability
S. Forms of criminal responsibility
6. Mistake
7. Attempts
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CHAPTER 3 - SANCTIONS
a. Introduction
I. Criminal and administrative sanctions
2. Sanctions against legal entities
3. Measurement of the sanction
4. Authority which supervises the sanctions
5. Penalties in the case of concurrent offences
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CHAPTER 4 - INVESTIGATION A N D PROSECUTION

a. Introduction
I. Legal status and powers of investigative authorities
2. Powers of investigative authorities
3. Legal status of the public prosecutor
4. Tasks of the public prosecutor
5. Control of the decision to prosecute: decisions
not to prosecute and committal proceedings
6. Investigating and prosecuting CorpusJuris crimes
under the CorpusJuris rules: would candidate states
be able to "receive" the CorpusJuris?
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CHAPTER 5 - SETTLEMENT
a. Introduction
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CHAPTER 6 - PROCEDURAL RIGHTS

a. Introduction
I. Rights of the defence
2. Right to individual liberty
(i) Police arrest pending delivery of arrest warrant
(ii) Arrest warrants
(iii) Length of pre-trial detention
(iv) Judicial control of pre-trial detention
3. Right of victims to initiate proceedings
c. Conclusions and recommendcrtions
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CHAPTER 7 - EVIDENCE
a. Introduction
I. Powers of investigative authorities in the field of
evidence gathering
(i) Questioning suspects
(ii) Requesting the defendant to produce
documents
(iii) Questioning third parties
(iv) Searching property
(v) Requiring access to computers
(vi) Requiring banks to divulge details of
customer's accounts
(vii)Telephone taps
2. Expert opinions by forensic accountancy experts
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I See the reports at: http:/Iwww.era,int/domains/corDus-iuris/pubEc/index.htm:

Usemame:Corpusiuris,Codeword;~DuraLex!sedLex
* Professorof Law,Universityof Antwerp
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3. Access to the evidence ~ charge by the defence

4. Admissibility of evidence
5. Use of evidence obtained abroad in domestic
criminal proceedings
6. Participation of foreign and EU-investigators in
national investigations
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CHAPTER 8 - RECOVERY
a. Introduction
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CHAPTER 9 -WHISTLEBLOWING
a. Introduction
I. Public officials
2. Auditors of companies and trustees of bankruptcy
administrations
3. Private employees and other private persons
4. Anonymity and other forms of protection for
whistleblowers
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CHAPTER 10 - INTERNATIONAL COOPERATION

a. Introduction
I. Geographical reach of the criminal law
2. Extradition
3. Mutual assistance in criminal matters
4. Transfer of criminal proceedings and transfer of
execution of sentences
5. Secrecy of investigations: exchange of information
and dataprotection
(i) The horizontal model
(ii) Relaunching the vertical model of
judicial integration
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CONCLUDING CHAPTER
a.Assessment of the candidate states
I. Assessment of the candidate states by the
yardstick of the acquis
2. Assessing the candidate states with the yardstick
of the CorpusJuris
b.Assessment of the acquis
c. Matters for further consideration at a future
Intergovernmental conference
I. Minimum requirements for judicial integration
(i) Policing the police
(ii) Judicial control of the public prosecutor
2. Matters for consideration by the Laeken Summit
(i) Putting "judicial integration" in the EU
on its agenda
(ii) Necessity, legitimacy and feasibility of the
Corpus Juris in the candidate states ?
(iii) Relaunching the Corpus Juris
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SUMMING UP OF RECOMMENDATIONS
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PROPOSALS FOR CONSIDERATION AT THE

LAEKEN SUMMIT
Proposal I
Clarifythe acquis communautaire
Proposal II - Reconsidercreation of European
Public Prosecutor
Proposal III - Considercreation of European Preliminary
Chamber
Proposal IV - Providejudicial control of cross-border
investigations
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APPENDIX: CORPUS JURIS 2000
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The Protection of the Financial Interests

of the EU in the Candidate States
INTRODUCTORY CHAPTER
This is the final report of a study conducted in nine states that
are accession candidates of the European Union. The study was
sponsored by the European Commission, with OLAF providing
funding for the final seminar of the project. The purpose of the
study is to analyse and assess national legislation on the protection
of the financial interests of the EC in these states. The study was
conducted in the following candidate states: Bulgaria, Estonia, the
Czech Republic, Hungary, Lithuania, Poland, Romania, the Slovak
Republic and Slovenia.The study does not include Cyprus, Malta and
Latvia. The focus of the study was on candidate states with legal
systems marked by the transition to the post-Communist era,
which explains why Cyprus and Malta were not included. The
reason why Latvia is not present in the study is that we could not
find a Latvian expert who could write the national report within the
deadlines that were set for this study.
The study is the follow-up to a number of studies that were
previously conducted (in various stages and over a period of more
than I0 years) in the current member states and that have led to
several reports and recommendations, some of which have inspired
new legislation, both European and domestic.
The present study was carried out by a group of national
rapporteurs (one for each candidate state) in conjunction with a
group of EU-experts, largely composed by the experts who
contributed to the previous EU-studies referred to. The national
experts for this study were: Jaroslav Fenyk, Supreme State
Prosecutor's Office, Prague; Jaan Ginter, University of Tartu;
University of Ljubljana; Damian Koro~ec supported by Matjar
v
Jager and Katja Sugman, all University of Ljubljana; Angela
Nicolae, Prosecutor's Office - Supreme Court of Justice,
Bucharest; A n n a Ondrejov=t, General Prosecutor's Office of the
Slovak Republic, Bratislava; Rita Petro, University of Miskolc;
Sasho Georgiev Penov, Sofia University and University of Veliko
Tarnovo; University of Ljubljana; Gintaras Svedas,Vice-Minister of
Justice of Republic of Lithuania, Vilnius; Boris Velchev, Sofia
University and University ofVeliko Tarnovo; Eleonora Zieli6ska,
University of Warsaw.
The EU-experts were: Enrique Bacigalupo Zapater, Tribunal
Supremo, Madrid; B e r t r a n d Favreau, Avocat, Bordeaux; Stefano
Manacorda, University of Naples; A r i - M a t t i Nuutila, University
ofTurku; Rosaria Sicurella, University of Catania; John Spencer,
Selwyn College, University of Cambridge; Dionysios Spinellis,
University of Athens; John A.E.Vervaele, Centre for Enforcement
of European Law, Utrecht; Joachim Vogel, University of T~ibingen;
ChristineVan den Wyngaert, University of Antwerp and Helen
Xanthaki, Institute for Advanced Legal Studies, London.
The project was coordinated at the Academy of European Law
(ERA) in Trier, Germany by Peter Cullen and Judith Lenssen who
prepared the meetings and also assisted in the preliminary research
for the project and reviewed the final report*. Maria Mercedes
Pisani,who drafted the first version of the questionnaire referred to
below, also provided research assistance.
The study addressed I0 general topics: offences against the
financial interests of the European Community, criminal
responsibility, sanctions, investigation and prosecution, settlement,
procedural rights, evidence, recovery, whistleblowing and
international cooperation.
The methodology was the following.There were two groups of
experts: nine national experts (one for each candidate state
IgnaceVanDaele,researchassistantat the Universityof Antwerpassistedthe general
reporterwith logisticsupport.He and Dr GuyStessensof the Universityof Antwerp
deliveredmuchappreciatedcommentsfor thisfinalreport,Thegeneralreporteralso
wishesto thankPeterCullenof ERAfor hisobservationsand generalsupport.

represented in the study) and thirteen experts from the current

member states.The nine national experts reported on the basis of
a questionnaire that was prepared by the European Commission and
further elaborated by the thirteen EU-experts, who were each
responsible for one (sub) topic in the study. Each national expert
delivered a national report ("vertical study"), answering the questions
of the questionnaire from the perspective of his or her legal system.
These reports then formed the basis of the "horizontal" studies
made by the EU-experts, in which they analysed and assessed the
data and findings of the national rapporteurs. In concluding their
horizontal study, the EU-experts made a number of submissions
directed to either the candidate states (individually or as a whole)
or the European Union. They drew up charts with more specific
assessment items, summarizing their
conclusions on
compatibility/incompatibility/partial compatibility with the acquis.
The horizontal reports and the charts will be published with this
report in volume 38 of the series of publications of the ERA.
The objective of the study is to assess the "state of preparation"
for accession in the candidate states in the study on one specific
point: the protection of the financial interests of the European
Communities. The minimum level of protection that they will be
required to offer at the moment of accession is a protection that is
equivalent to the protection given to their own financial interests
(EC Treaty, art. 280 (2) - duty of assimilation).The study therefore
examines the level of protection given to EC financial interests and
assesses whether national systems in the candidate states are
compatible with the acquis communautaire on this subject. National
experts were asked to draw a status questionis of the legal situation
in their respective states and to describe the position in their
countries as to the acquis communautaire. Their task was also to
report on recent legislative initiatives to prepare the country for
accession.
The first yardstick for the assessment of the legal systems in the
candidate states was the acquis communautaire.The most important
provision is contained in the EC-treaty itself, which states in art. 280 (I):
"The Community and the Member States shall counter fraud and any
other illegal activities affecting the financial interests of the
Community through measures to be taken in accordance with this
Article, which shall act as a deterrent and be such as to afford
effective protection in the Member States".
The acquis is further spelled out in the fifteen principles laid
down in the Pre-Accession Pact'. These principles encompass the
essential elements of a cooperation strategy between the EU and
the candidate states in the combating of organised crime. At the
same date as the Pre-Accession Pact was adopted, the Council of
the European Union published a list of "Third Pillar" acquis (and
associated texts) extending inter alia to the fields of police and
judicial cooperation in criminal matters, plus human rights
instruments. Important instruments that post-date the accession
pact but nevertheless belong to the acquis include, inter alia, the
Tampere milestones of October 19992,the Convention on Mutual
Assistance in Criminal Matters between the EU Member States of
May 20003, the Framework decision on the Euro4 and the Council
Decision of 14 December 2000 setting up pro-EurojustL Finally, yet
importantly, there is the Treaty of Nice 6 and the Charter of
fundamental rights (December 2000)7that, by the time of accession,
will probably belong to the acquis.
This study is the first attempt to proceed to a systematic
identification of the provisions in the acquis communautaire on the
specific point of the protection of the financial interests of the
European Community. Proceeding to this identification and trying
to find a "criminal law and procedure" logic in the acquis was not an
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easy exercise, and the study pointed to important loopholes in the
acquis.The f o u r "Laeken proposals" that are made in conclusion

of the study are in the first place directed towards this problem.
In an attempt to develop a wider perspective on the question of
the protection of the financial interests of the European
Community in the candidate states, Corpus Juris was used as a
second yardstick for the purposes of this study. The Corpus Juris,
drafted in 19978and revised in 2000 after an in-depth study of its
compatibility with the legal systems in the 15 member states 9 does
not, quite obviously, belong to the acquis communautaire. Yet, it
incorporates many elements of the acquis and it integrates elements
of the criminal procedure systems of the fifteen current member
states. It tries to define a jus commune based, not on one single
model of a national criminal justice system, but on an "eclectic"
combination of the solutions offered by the member states to
criminal justice problems they have in common in the field of
fighting financial crime.
National experts in the candidate states were therefore asked to
reflect on the feasibility of the Corpus Juris in their respective
criminal justice systems and to examine whether, as a long-term
perspective, they would be capable of receiving the Corpus Juris.
They were asked to examine whether the CorpusJuris would be an
additional obstacle to accession or whether it could be received
through interpretation or broadening of the existing statutory
provisions.
As the following chapters indicate, the answer to this question
varied according to the specific points that were addressed in the
study. In some cases, the conclusion was that there was total
incompatibility. In others, however, compatibility with Corpus Juris
was possible and could serve as an indicator of feasibility within an
enlarged European Union. In still other cases, the study revealed
problems that are not dealt with in the acquis yet and that are likely
to arise upon accession. In some of these cases, the Corpus Juris
might be a model to resolve the problems in question.
At this stage in time, the CarpusJuris belongs to the tex desiderata,
whereas the lex lata, from a European point of view, consists of a
labyrinth of instruments, not only of regulations, directives and
framework decisions but more often of conventions with varying
success as to ratification. Until these conventions have been
effectively ratified and implemented by the states, domestic
legislation in the field of cooperation in criminal matters remains
crucial.
Paradoxically, the adoption of the Corpus Juris, even though it is
now only a long term lex desiderata project, may be an easier
t
2
3
5
6
7
8
9
Pre-Accession Pact on organised crime between the member states of the European
Union and the applicant countries of Central and Eastern Europe and Cyprus,
approved by the JHA Council on 28 May t998, Offiddjournai No. C 220, t S,07 1998.
Presidency Conclusions, Tampere European Council, 15 and 16 October 1999, SN
200/99/CAB/EN/I.
EU Convention on Mutual Assistance in Criminal Matters between the Member
States of the European Union, Brussels, 29 May 2000, Offcial Journal No, C 197,
12.07.2000, p. 1.
Council framework Decision of 29 May 2000 on increasing protection by criminal
penalties and other sanctions against counterfeiting in connection with the
introduction of the euro, Offcial joumd No. L 140, 14.06,2000, p, I, See also
Framework Decision of 28 May 2001 combating fraud and counterfeiting of non-cash
means of payment, Offcialjaumal No. L 149, 02.06.200 l p, I 4.
Council Decision of 14 December 2000 setting up a Provisional judicial Cooperation
Unit, OffcialJaumol No, L 324, 2 I. 12.2000.
Treaty of Nice, Amending theTreatu on European Union, theTreaties establishing the
European Communities and certain related acts. Nice, 26 February 200i, OffciaI
Journal No. C 80, 10.03.2001, p, I.
Charter of Fundamental Rights of the European Union, Official journal No, C 364,
18.12,2000, p.I.
Delmas-Marty, M. (ed), Corpus introducing penal provisions far the purpose af the
financial interests of the European Union, Ecanamfea, t997.
Delmas-Marty, M, and Vervae!e, ~, (eds), The impteroentat~on af the CarpusJuns in the
member states, tntersent~a. 2000,
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solution from a pragmatic point of view than the ratification and

implementation of the labyrinth of conventions that constitute the
acquis communautaire. However, this is, quite obviously, a policy
question.We believe, however, that the Laeken summit (December
2001) should not avoid the debate on this policy question.
Proposals I and 11,in conclusion of this study, are addressed towards
this ~~
It was not the purpose of this study to reopen the discussion on
the Corpus Juris itself at this moment in time. However, it was
inevitable the participants in the study, having looked at the
legislation of the candidate states with the yardstick of the Corpus
Juris, reflected on the Corpus Juris itself.This led some EU-experts,
after listening to observations formulated in the national reports, to
make suggestions for further reflection on specific articles of the
CorpusJuris, which may increase its chances of reception, not only in
the candidate states but also in the current member states of the
EU (See Recommendations 3, 6, 7 an 18)".
This study was conducted from June 2000 to September 200 I, a
very short period taking into account the large number of subjects
that the experts were asked to examine. National experts and EUexperts addressed all the issues of this study in one semester
respectively (September 2000 - February 2001 for the national
experts and February - July 2001 for the EU experts). Given the
time constraints it was not possible to go into the same detail and
depth as was done in other evaluation exercises such as the first
evaluation on mutual assistance in criminal matters by the Council
(May 2001) '2, which is the result of a study conducted over several
years 13.
This final report is the result of a common effort of the national
and EU-experts referred to above who worked in close synergy
over the period of time that was available for this study. It
summarises, analyses and assesses the data collected and studied by
national and EU-experts in the vertical and horizontal studies
drawn up on the basis of the questionnaire. It is organised in
chapters that follow the structure of the questionnaire. Each
chapter in the final report is composed of 3 parts, an introduction,
a comparative analysis based on the "horizontal" reports of the EUexperts, and a conclusion with recommendations.
There are t w e n t y o n e r e c o m m e n d a t i o n s , which go with the
IO Chapters of this study and the subjects that are addressed
therein (offences against the financial interests of the European
Community, criminal responsibility, sanctions, investigation and
prosecution, settlement, procedural rights, evidence, recovery,
whistleblowing and international cooperation). Most of these
recommendations are based on submissions made by the experts
that participated in the study. The addressees of the
recommendations vary. Some recommendations are directed at the
candidate states, some at candidate states and current member
states alike, whereas other recommendations call for further
reflection on a number of points of the Corpus Juris or of the
current acquis '~ and are therefore directed at the EU as a whole.
This study was written against the background of the "postNice"-debate and with the perspective of the Declaration on the
Future of the Union, in with the Intergovernmental Conference
called for a deeper and wider debate about the future of the
European Union (Annex IV to the Nice Treaty). The declaration
sums up four specific "leftovers" of Nice, to be addressed by the
Summit of Laeken, which is to be held in December 2001 and which
is to produce the Declaration of Laeken. Judicial integration is not
listed among these four points.We believe that this study has shown
that there is a need for further reflection on judicial integration in
T h e Protection of the Financial Interests
a future European Union composed of more than twenty member

states. The protection of the financial interests of the European
Union should be part of this reflection. For this purpose, the final
report formulates f o u r proposals that are addressed at the
Laeken Summit 's.
CHAPTER
I - OFFENCES
a. I n t r o d u c t i o n
This Chapter aims at examining whether the candidate states

have adequate legislation to allow them to prosecute and punish
the offences against the financial interests of the EC that are listed
in the questionnaire: fraud affecting the financial interests of the
European Communities (hereinafter EC-fraud) and assimilated
offences, such as market-rigging, money laundering and receiving,
conspiracy, corruption, misappropriation of funds, abuse of office,
disclosure of professional secrets and counterfeiting of the Euro.
The list is based on the list of offences in the Corpus Juris, with the
addition of counterfeiting of the Euro.
The yardstick is the acquis communautaire and, where no such
acquis exists, the CorpusJuris.The measurement against the acquis is
meant to answer the question whether candidate states are capable
of protecting the EC financial interests according to the rules that
have already been adopted by the current EU member states.The
measurement against the Corpus Juris is meant to answer the
question whether candidate states would be capable of receiving
the CorpusJuris crimes in their national legal order, were the Corpus
Juris to be adopted in the future.
Some of the offences listed in this Chapter are part of the acquis
communautaire (EC-fraud, money laundering, corruption and
counterfeiting of the Euro); others have been defined in the Corpus
Juris, not in the acquis. For the purposes of this study, both
categories are referred to as "acquis-offences" and "Corpus Jurisoffences" respectively. The reason for the introduction of Corpus
Juris is the following. The drafters of Corpus Juris were asked to
reflect on a system that would ensure an adequate and effective
protection of the financial interests of the European Community,
based on a comparative study of the national criminal justice
systems in the current EU member states.The question was: "what
should be the offences that should exist for the purposes of an
adequate and effective penal protection of these interests?'.Where
the comparative study revealed the existence of lacunae, it resulted
in the definition of "new offences". Examples are "market-rigging"
and disclosure of professional secrets. Another new offence is
"abuse of office", which results from the finding that abuse of office
is an offence under the statutes on corruption in some, but not all
of the current member states.
Acquis-offences that were incorporated in the Corpus (EU fraud,
corruption, money laundering and receiving and participation in a
criminal organisation (conspiracy)) have sometimes been defined in
a somewhat different way, often as a result of the comparative
studies that were undertaken after the acquis-offences were
defined. For example, the definition of EC-fraud in the acquis
I0 Seein[to,Proposalsfor considerationat the Laekensummit,p. 132.
I I Infra,Summingup of Recommendations,p. 137
12 FinalReporton the first evaluationexercise- mutualassistancein criminalmatters
adoptedbythe Councilon 28 May200t, O~c~alJoumalNo.C 216/t4,01.08.200t.
13 Thisevaluationwas madepursuantto art.8(5) and art. I0 of the joint Actionof 5
December 1997 establishinga mechanismfor evaluatingthe applicationand
implementationat a nationallevel of internationalundertakingsin the field of
organisedcrime.
14 Infra,Summingup of Recommendations,p, 137
15 Seeinfra,Proposalsfor considerationat the Laekensummit,p, 132,

distinguishes between fraud affecting the revenue and fraud

affecting the ex-penditure, whereas both have been merged into
one single offence in the Carpus Juris.
The following paragraphs examine the provisions on substantive
criminal law in the candidate states concerning the protection of
the financial interests of the European Community, both for acquisoffences and for CorpusJuris-offences.
b, Comparative analysis candidate states
I. E C - F R A U D A N D A S S I M I L A T E D O F F E N C E S
Professor Grasso rightly observes that EC-fraud is the "keyoffence" of all offences against the financial interests of the
European Community. It is essential for the European Community
to protect itself against fraudulent appropriation of subsidies and
aids that are paid in the framework of Community policies, and
against illegal activities affecting the revenue of the Community. As
Community funds are to a large extent managed by member states,
the responsibility for the protection of these funds against
dishonest appropriation or avoidance of dues lies mainly with the
member states (See also infra, indirect recovery, Chapter 8.).
Candidate states that want to become member states must
therefore provide the necessary legislation for the protection of
these funds.
Following the distinction made in the introduction to this
Chapter, a distinction is made between "acquis-offences" and
"CorpusJuris-offences".
(i) Acquis.offences
Fraud affecting the financial interests of the EC has been defined

in the basic acquis-text on the subject, the 1995 Convention on the
Protection of the European Community's Financial Interests
(hereinafter "PIF"-convention) ~6. Article I of the Convention
distinguishes between fraudulent acts relating to the expenditure
and fraudulent acts relating to the revenue of the EU. It only
punishes intentional acts and omissions.Administrative irregularities
were defined in Regulation No. 2988195 of 18 December 1995'7.
The first question analysed in the study was the extent to which
candidate states protect their national financial interests, and
thereafter examined to what extent the national protection rules
also protect the financial interests of the European Community.
As to fraud affecting the expenditure (cf. art. I (a) PIF-Convention)
Professor Grasso observes that many candidate states lack specific
provisions to punish subsidy fraud. Only Poland, Slovakia, Slovenia
and the Czech Republic have specific offences punishing subsidy
fraud.
All candidate states in the study punish the presentation of false or
incomplete declarations to the authorities (art. I(a) first indent).
Some national criminal justice systems provide specific offences on
this point (e.g. Bulgaria, the Czech Republic, Poland and Lithuania).
In other legislation, the general offence of fraud is applicable to this
kind of behaviour (the presentation of false or incomplete
declarations being the modus operandi to realise the fraud offence),
and presentation of false or incomplete declarations would
normally be considered as attempted fraud.
The non-disclosure of information which has the effect of
misappropriation or wrongful detention of funds (art. I (a) second
indent) has only been explicitly provided in the Czech Republic.
Legislation that provides specific offences does not mention the
non-disclosure of information separately. Behaviour of this kind
could therefore only lead to punishment if it falls under the general
provision of fraud, in cases where non-disclosure of information is
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considered to be a form of deceptive behaviour.This seems to be

the position in Poland, the Slovak Republic and Slovenia. However,
non-disclosure is not punishable at all in Bulgaria, Poland and
Romania.
The misapplication of funds for purposes other than those for which
they were originally granted (art. I(a) third indent) is not punishable in
many candidate states. Only Poland (fiscal code) provides an explicit
offence, whereas in Lithuania, Slovenia and the Czech Republic,
behaviour of this kind is punished on the basis of the general
offence of embezzlement. The expert notes that in all other
systems, this behaviour is not punishable at all.
Fraud affecting the revenue (art. I (b) of the PIF-Convention) is, in
most candidate states, punishable both in the form of false or
incomplete declarations (art. I(b) first indent) and in the form of
non-disclosure of information (art. I(b) sec-ond indent). Some
systems require the amount that has been evaded to be "significant"
(Slovenia, Bulgaria, the Czech Republic), failing which only
administrative penalties will apply. The expert notes that whereas
the penal codes of Estonia, Lithuania, Slovenia and the Slovak
Republic punish presentation of false or incomplete declarations or
the non-disclosure without further conditions, Hungary, Poland and
the Czech Republic require the existence of a result in the form of
a damage suffered by national finances.
As far as the assimilation of national fraud with EC-fraud is
concerned, the EU expert notes that only Bulgaria, Lithuania,
Slovenia and the Czech Republic have proceeded to a total
assimilation by providing that all provisions protecting national
finances against fraud (both on the expenditure and on the revenue
side) will also be applicable to fraud against the financial interests of
the European Communities. In most other candidate states, the
assimilation is far from complete.This seems to be less problematic
for "expenditure fraud" where national criminal provisions can
usually be applied to EC fraud without a need for explicit
assimilation of the two kinds of fraud in the statute. However, as far
as "revenue-fraud" is concerned, legislation in the Slovak Republic,
Poland, Estonia and Romania does not cover fiscal fraud against the
EC. The expert notes that only Hungarian legislation seems to
assimilate national fiscal fraud and fiscal fraud against the EC. Some
states, like the Slovak Republic, are in the process of changing their
legislation.
The foregoing leads to the conclusion that the situation in many
candidate states is unsatisfactory.With the exception of the Czech
Republic, Lithuania and Slovenia,the legal systems in most candidate
states seem to be quite problematic. Legislative reforms are under
way in Estonia and the Slovak Republic.The most direct lacunae
exist in Bulgaria, where no punishment at all exists for the
misappropriation of subsidies and the non-disclosure of
information.
(ill Corpus ]uris
The CarpusJuris defines the concept of fraud in a way that differs
from the above-mentioned definition in the PIF-convention. Firstly, it
combines frauds affecting the expenditure and affecting the revenue in
I6 Convention on the Protection of the European Communities' Financial interests,
O~ciat Journal No, C 3t6, 27,] t,1995, p. 48. The acronym "PIF-Convention" stems
from the French title of the convention and the words Protection des Int~r6ts
Financiers. There is a proposal for the "reformatting" of this convention (and ~ts
additional protocols) in the form of a EU-directive: Proposal for a Directive of the
European Parliament and of the Council on the criminal-law protection of the
Community's financial interests, presented by the Commission, 23 May 2001, Doc.
COM (2001) 272 final, O~Tcidjoumal No. C 240 E/125, 28,08,2001,
f7 Council Regulation (EC, EURATOM) No. 2988/95 of 18 December 1995 on the
Protection of the European Communities' Financial Interests, OfficialJournal No. L 312,
23. t2.1995, p, I-4.
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one single definition. Secondly, it also punishes "assimilated offences",

that is acts carried our. not intentionally, but by recklessness and gross
negligence.Thirdly, the definition is broader because it only requires
that the act or omission endangers the financial interests of the EC, not
that harm is actually inflicted (infraction de raise en danger). Fourthly,
exoneration is provided for any person who corrects the inaccuracies
or omissions in a false declaration or withdraws an application made
on the basis of false documents, or who informs the authorities about
facts that he has omitted to reveal before these authorities have
discovered the act (art. I w
The assessment of the legislation of the candidate states with
respect to Corpus Juris concerns the question whether the
candidate states in the study would be able to receive the Corpus
Juris if it were to be introduced.The requirement of a risk (and not
of actually inflicted harm) met with the approval of the Czech and
Polish rapporteurs, who mention recent national legislation on the
subject.The exoneration clause in w of article I CorpusJuris would
cause problems in two candidate states (Lithuania and the Czech
Republic) but would correspond to recent legislative reforms in
Poland, Hungary and the SIovak Republic. "Assimilated fraud"
would, at present, not be punishable in most candidate states, but
most national reporters, with the exception of the reporters for
Bulgaria and Estonia, felt that this form of fraud could be introduced
by statutory law. The conclusion therefore is that EC-fraud, as
defined in the CorpusJuris, may not as yet be completely covered by
statutory law in all candidate states, but there would be no
objections against its reception.
2. M A R K E T
- RIGGING
Market-rigging does not, as yet, belong to the acquis

communautaire. It is defined as an offence by art. 2 of the Corpus
Juris~8.This provision was inspired by the model of w
of the
German Penal Code. Most of the current member states of the EU
do not have an offence of this kind in their national criminal
legislation.The drafters of the CorpusJuris found this to be a lacuna
in the effective protection of the financial interests of the EC and
therefore proposed its inclusion in the list of offences in the Corpus
Juris.
In most candidate member states, as in the current member
states, market-rigging is only prohibited by administrative
regulations, not by penal rules. Some candidate states, however, have
detailed penal rules on the subject even though they do not fully
correspond to the formulation of art.2 CorpusJuris. Such rules exist
in Poland,The Slovak Republic, Slovenia and the Czech Republic.
The expert concludes that the introduction of article 2 Corpus
Juris would not meet with obstacles in the candidate states in the
study.
3. M O N E Y
LAUNDERING
AND
RECEIVING
The acquis on money laundering is very substantial: apart from

the UN '9 and Council of Europe-instruments2~on the subject, there
is a EC-directive on money laundering2' and a specific definition of
money laundering referring to EC-fraud and corruption2~.The very
recent Framework Decision of 26 June 2001 on money laundering,
the identification, tracing, freezing, seizing and confiscation of
instrumentalities and the proceeds of crime 23, reformats much of
the Joint Action of 1998 on this topic. The Corpus Juris moreover
incorporates a definition of money laundering that largely
corresponds to the definition in the EU-directive.
Most candidate states have adopted legislation implementing the
1990 Council of Europe Convention on the subject of money

laundering. Some, for example Romania, comply with the EU

directive.
Some candidate states have a "single" provision on money
laundering; others have separate provisions for money laundering
and receiving.The expert notes a number of differences in the way
in which the national provisions have been formulated. In Estonia,
the concealment or disguise of the origin of the good is only
punishable if the predicate offence is punishable with 8 years in
prison, which obviously does correspond to the requirement that
was already laid down in the 1998 Joint Action and which has non
been reiterated in the Framework Decision of 26 June, that all
predicate offences involving maximum penalties of one year should
be covered. Some candidate states (Hungary, Poland and the Slovak
Republic) extend the offence of money laundering to the noncompliance with reporting duties by financial institutions.
Another category of differences noted by the rapporteur relates
to the object of the laundering offence: under Bulgarian law, only
moveable property is covered, whereas in most other candidate
states all "goods" including profits are covered. Doubts persist as to
whether Hungarian and Estonian legislation also cover indirect
profits.
One of the crucial questions in respect of money laundering is
what offences qualify as "predicate offences" for the purposes of
money laundering. Most candidate states have not limited the
offence of money laundering to certain predicate offences only and
thus seem to consider EC-fraud as a predicate offence for the
offence of money laundering.The only state that provides a list (not
including EC-fraud) is Romania. Professor Grasso believes that this
constitutes a real obstacle to prosecution of laundering offences
other than fraud and membership of a criminal organisation. Of
another nature, but also a serious obstacle, is the provision in the
Bulgarian legislation on money laundering which requires that the
predicate offence is either committed by a Bulgarian national or
affects Bulgarian national interests.This restricted definition of the
predicate offence may effectively turn Bulgaria into a safe haven for
laundering the proceeds obtained by non-Bulgarians outside
Bulgaria. Hungarian legislation requires that the predicate offence is
punishable with imprisonment and Slovenian law requires the
predicate offence to be an intentional offence. Only Estonia,
Lithuania, Poland and the Slovak Republic place no requirements
upon the predicate offence that might affect the punishability of
laundering profits from crime against the financial interests of the
Community.
These incompatibilities with the acquis communautaire on money
laundering would also exist in respect of article 3 of the CorpusJuris,
which basically reproduces the acquis communautaire on the subject.
There is one novelty in Corpus Juris 2000: the article has been
supplemented with a provision to the effect that the same person
cannot be charged with both the laundering offence and the
18Thedefinitionin art.2 ( I) Corpusjurisisasfollows:"It isa criminaloffencefor a person,
in the contextof an adjudicationprocessgovernedby Communitylaw,to makea
tenderon the basisof anagreementcalculatedto restrictcompetitionandintended
to causethe relevantauthorityto accepta particularoffer"
19 ConventionagainstIllicitTraffic in Narcotic Drugs and PsychotropicSubstances,
Vienna,20 December1988,InternationalLegalMaterials 1989,493.
20 Conventionon Laundering,Search,Seizureand Confiscationof the Proceedsfrom
Crime,Strasbourg,8 November1990,EuropeanTreatySenes,No. 14I,
21 EC-DirectiveNo. 91/308on the Preventionof the Use of the FinancialSystemfor
the Purposeof MoneyLaundering,O~cialjoumal No. L 166,28.06.199I, p.77.
22 Second Protocol to the Convention on the protection of the European
Communities'financialinterests,Luxemburg19June1997,O~cialjoumalNo.C 221,
19,07.1997,p,I I,
23 Council Framework Decision of 26 June 2001 on money laundering,the
identification,tracing,freezing,seizingand confiscationof instrumentalitiesand the
proceedsof crime,Off~cialjournalNo. L i82,05.07.2001,p. I.

of the EU in t h e Candidate States
predicate offence2~.The expert notes that the same rule applies in a

number of candidate states (Hungary, Czech and Slovak Republics),
but not in all (Stovenia, Lithuania, Poland). The latter would be the
only point of divergence with the Corpus Juris, which can hardly be
a point of criticism, given the fact that such provision is explicitly
allowed for by Article 6 (2) of the Council of Europe Convention
on money laundering.
4.CONSPIRACY AND MEMBERSHIP OF A CRIMINAL
ORGANISATION
The most important acquis-instrument on conspiracy is the EU

Joint Action on making it a Criminal Offence to Participate in a
Criminal Organization in the Member States of the European Union
( 1998)2L It leaves states the choice between two approaches, either
to criminalize membership of a criminal organisation, or to
criminalize conspiracy.This reflects the difference in approach that
states follow in criminalizing behaviour committed in the
framework of organised crime. One group of states have a specific
crime in the special part of their criminal code defining the offence
of membership of a criminal organisation (association de malfaiteurs
in France and Belgium), the other group criminalizes conspiracy in
more general terms as a form of criminal participation (e.g.
conspiracy to defraud in the UK and Ireland).
The CorpusJuris text on conspiracy combines both approaches. It
makes it a criminal offence to participate in a conspiracy that is
harmful to the financial interests of the European Communities. It
further defines the notion of criminal organisation as a conspiracy
of three or more persons working together, setting up a stable
organisation, with a view of carrying out several Corpus Jurisoffences. This definition is stricter than the definition in the Joint
Action, which does not contain the requirement of stability and for
which two or more persons are sufficient.
All candidate states have criminatized membership of a criminal
organisation. The requirements for an organisation to qualify as a
criminal organisation differ from one state to another, e.g. the
condition of "stability" (Bulgaria, Poland), minimum number of
participants (two in Bulgaria, three in Poland), degrees of internal
organisation, etc. The expert notes that several candidate states
have provided conditions that may be obstacles in the way of an
effective protection of the financial interests of the European
Communities. For example, Hungarian legislation limits the notion
of criminal organisation by reference to a list of offences that are
enumerated in art. 263 of the Penal Code and to the condition that
one of these offences has already been committed. Under
Lithuanian law, the notion of criminal organisation is also restricted
by reference to a list of very serious crimes. Bulgarian law requires
the criminal association to be established in Bulgaria, which is a
serious restriction. In Slovenia (and also in the Estonian Draft Penal
Code), there is a condition that the offences that are the objective
of the criminal organisation be punishable with more than 5 years.
This would exclude many Corpus Juris offences, where principal
penalties for intentional offences are only up to 5 years (art. 14 w (a)
Corpus Juris).
5. C O R R U P T I O N
A great number of international instruments deal with

corruption. As this study only examines offences against the
financial interests of the EC, the corruption offences under
examination are not corruption offences in general, but only
corruption offences affecting the financial interests of the EC.
The most important acquis instrument on this subject is the 1996
E R A - Forum
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Additional Protocol to the PIF-Convention 26,which obliges member

states to assimilate European and foreign officials with national
officials and which defines corruption. Another instrument of the
acquis is the Joint Action on Corruption in the Private Sector
(1998)~7.The Corpus Juris definition of corruption is built on the
1996 Additional Protocol but does not extend the notion of
corruption to private corruption. Article 5 Corpus Juris defines the
notions of official (assimilating EU officials and national officials) and
of passive and active corruption and limits the offence to
corruption causing harm to the financial interests of the European
Communities.
All candidate states have adopted legislation on corruption. Dr.
Sicurella notes a loophole in some national criminal justice systems
as to the object of the illicit pact: under Bulgarian and Lithuanian law,
the exchange can relate only to property advantages. Under
Estonian law, the illicit pact (in the case of passive corruption) can
consist only of a proprietary benefit. These provisions are more
restricted than the notion of "advantages of any kind whatsoever"
in art.2 of the 1997 EU-convention on corruption or the "offer,
promise or advantage of whatever nature" in art. 5 Corpus Juris.
Another, even more important loophole, lies in the fact that the
corruption statutes in the candidate states often do not cover
bribery of foreign and European public offscials. Like many of the
current EU member states, many candidate states are in the
process of adapting their legislation in order to make it compatible
with the acquis on this point. The only problematic states are
Estonia and Bulgaria, which only sanction active corruption of
foreign and international public officials.
Several candidate states have legislation concerning corruption in
the private sector.The 1998 JointAction on Corruption in the Private
Sector limits the offence to acts performed in breach of the
professional duties of the person who accepts the bribe. Bulgaria,
Hungary, Lithuania, Romania, Slovenia and the Slovak Republic have
even opted for a more extended repression system.They do not
require the act to be in violation of a professional duty. Some
systems even apply the offence of private corruption to employees
and directors of foreign companies, which is a subject that is not
covered by the Joint Action. Hungary (active corruption only),
Lithuania and Slovenia are in this category.
6. M I S A P P R O P R I A T I O N
OF FUNDS
Misappropriation of funds is a "Corpus Juris" offence~LThere is no

acquis communautaire on this subject. The situation in candidate
states is largely comparable to that in the current member states,
which often lack explicit rules on market rigging but allow
punishment based on other, more general offences such as
embezzlement. In the Follow Up-Study on the Corpus Juris, no
obstacles against the adoption of a criminal provision were noted in
24 Implementing provision clarifying art.3 Corpus Juns on this point, see De]mas-blarty,
M, and Vervaele, J. (eds), op. cir., 193.
25 Joint Action on making it a Criminal Offence to Participate in a Criminal Organization
in the member states of the European Union, O~ciat Journal No. L 35 I, 29.12.1998,
p. I, See also the UN Convention against Transnational Organised Crime, 2
November 2000, UN General Assembly, International Legal Matends 2001, p. 353.
26 Protocol drawn up on the basis of Article K.3 of the-[heaty on European Union to
the Convention on the protection of the European Communities' financial interests,
Brussels, 27 September 1996, O~cialJoumal No, C 313, 23.10.1996, p, 2,
27 Joint Action on Corruption in the Private Sector, O~cialjoumal No, L 358, 3 I. 12.1998,
p,2, Only three current member States have to date (september 2001 ) implemented
this joint action.
28 Article 6 defines misappropriation of funds in the following way: "An official duty
authorised to dispose of Community funds commits a criminal offence if he
appropriates or misapplies them, ekher by deciding to award a subsidy, grant or
exemption in favour of a person who clearly has no right Io such a decision, or by
intervening directly or indirectly in the award of grants or exemptions from duty in
relation to any business or operation in which he has a personal interest."
ERA - Forum. 3 - 2001
respect of the current member statesZg.The same seems to be true

for the candidate states. Dr. Sicurella notes that there are, generally
speaking, no obstacles against the reception of art.6 Corpus Juris in
the candidate states, if future legislation on the subject also covers
foreign and international public officials (cf. the observations made
on this point in relation to corruption).
7 . A B U S E O F OFFICE
Like misappropriation of funds, abuse of office is a Corpus Juris

is no acquis communautaire on this subject. Like all
other offences in the Corpus Juris, the damage to the financial
interests of the EC is a constitutive element of the crime. The
"abuse of office" offence is subsidiary in nature: it applies only if no
other CorpusJuris offence exists3L
Abuse of office is a special form of corruption that, in some
national legislation of the current member states, is covered by the
statutes on corruption, but not in others.Therefore, the notion of
corruption in the Corpus Juris was not defined in such a broad
manner, but a special offence on abuse of office was included,
following the example of national legislations in a number of the
current member states (Denmark, Italy, Greece and Portugal).
Many candidate states punish, albeit in different forms, abuse of
office by their national public officials and even by foreign and
international public officials (with the exception of Lithuania and
Romania). They would therefore be in a position to receive art.7
CorpusJuris were it to be introduced.Yet, the Estonian expert had
questions about the combination of article 7 and article 13 and
wondered how a legal person or organisation could be charged
with abuse of office,
offence~~
8. D I S C L O S U R E O F P R O F E S S I O N A L SECRETS
Although the introduction of a specific offence regarding

disclosure of professional secrets was already proposed in 1976,
this offence has not yet materialized into an acquis communautaireoffence. It has been incorporated in the Corpus Juris, however. The
Follow Up-Study has indicated that many divergences between
national legal systems exist on this point.The article was, however,
retained by the drafters of CorpusJuris 2000 because they felt it was
necessary for the penal protection of the EU financial interests.
National authorities and private enterprises often hesitate to
communicate information to the European Commission because
there is no penal protection of secrets on EU-leveI.The CorpusJuris
article wants to fill this lacuna by penalising the disclosure of
professional secrets in cases where this revelation is likely to
damage the financial interests of the EC.The final reporter to the
Follow Up-Study, Prof. Detmas-Marty, emphasises that it was not the
aim of the Corpusjuris to influence choices in national criminal law,
such choices being a matter of sovereignty of states.The aim of the
proposed offence was only to ensure an effective protection of
European interests ~.
Analysing the legislation in the candidate states, Dr. Sicurella
distinguishes between two models for the protection of disclosure
of professional secrets. One group of states focuses on the capacity
of the author of the offence and requires him/her to be a public
official (subjective approach), another group of states starts from
the nature of the secret by defining a number of secrets that are
protected against illicit disclosure (objective approach). The first
category includes Bulgaria, Estonia and Poland, the second Hungary,
the Czech Republic and Lithuania (when the new code will come
into force, which is foreseen on January I, 2003). Romania and the
Slovak Republic have no specific rules on disclosure of professional
/
9

secrets but apply the traditional offence of professional secrecy

(violation du secret professionnel).The expert notes a number of loopholes in national legislations in candidate states if measured by the
yardstick of art.8 Corpus Juris. Firstly, the systems that follow the
subjective approach may have to extend the notion of "public
official" to foreign and international public officials. Secondly, the
systems that follow the objective approach do not always apply to
secrets of the nature envisaged by art.8.
9. C O U N T E R F E I T I N G T H E E U R O
The Euro, introduced by Council Regulation No.974t98 of 3 May

1998 shall be put into circulation as from I January 2002. This
regulation obliges the participating member states to ensure
adequate sanctions against counterfeiting and falsification of Euro
banknotes and coins. Counterfeiting the Euro has become an
"acquis.offence" since the Council framework Decision of 29 May
2000~. This framework decision is meant as a supplement to the
1929 Convention for the Suppression of Counterfeiting Currency
and its ProtocoP 4. For the purposes of the framework decision, the
term "currency" means paper money (including banknotes) and
metallic money, including Euro banknotes and Euro coins, the
circulation of which is legally authorised pursuant to Regulation
(EC) 974/98. It obliges member states to take the necessary
measures to ensure that counterfeiting is punishable. They are
required to penalise, not only the fraudulent making/altering and
uttering of counterfeit currency but also the import, export,
transport, receiving, obtaining of counterfeit currency with a view
to uttering the same and the fraudulent making and receiving of
facilities or materials that can be used for the purposes of
counterfeiting (art. 3), In addition, the above-mentioned acts should
be made punishable in relation to banknotes or coins that were
manufactured by the use of legal facilities or materials, but in
violation of the rights or conditions imposed by the issuing
authorities and without these authorities' agreement (art. 4). in
order to protect the Euro against counterfeiting in the months
before its entry into circulation (1 January 2002), member states
undertake to make the conduct referred to above also punishable
if it relates to future banknotes and coins of the Euro and is
committed before I January 2002 (art. 5).
All candidate states have domestic legislation on counterfeiting.
They all protect national and foreign currency equally, including
cheques, credit cards etc.
However, Dr. Sicurella notes considerable loopholes with respect
to art.3. Whereas the making/altering and uttering of counterfeit
money is punishable in all candidate states, the import, export,
transport, receiving, obtaining of counterfeit currency is not
punishable everywhere. Only Bulgaria, Estonia and Poland have
explicit provisions on import, export, transportation and receiving
counterfeit money. The notion "acquisition/reception" in the
legislation of Hungary, Slovenia, the Slovak Republic, the Czech
29 Delmas-Marty,M.,"Necessity,legitimacyand feasibilityof the CorpusJuris"in DelmasMarty,M,andVervaele,J,(eds),Theimptementa~onof the Corpusjuris in the member
states,Intersentia,2000,66-67,
30 Abuse of office is de~ned as follows in art. 7; "An offldat responsiblefor the
managementof Communityfundscommitsa criminaloffenceif heabuseshispowers
andtherebydamagesthe finandalinterestsof the EuropeanCommunities",
3i Implementingprovision,Detmas-Marty,M.andVervaele,J,,op.cir.,19t.
32 Deimas-Marty,~fl,of),dr.,70.
33 CouncilframeworkDecisionof 29 May 2000on increasingprotectionby criminal
penalties and other sanctions against counterfeiting in connection with the
introduction of the Euro,O~cial journal No, L 140, 14,06,2000,p. I, See also
FrameworkDecisionof 28 May2001combatingfraudandcounterfeitingof non-cash
meansof payment,O~cialJoumalNo. L 149,02.06.2001,p. I- 4,
34 InternationalConventionfor the Suppressionof CounterfeitingCurrency,and
Protocol,Geneva,20 April 1929,Leagueof Nations,TreatySeriesVol, I t2, p. 371.

Republic and Rumania does not seem to cover the import, export
or transport of such currency.
The fraudulent making and receiving of materials that can be used
for the purposes of counterfeiting seems to go unpunished in all
candidate states, with the exception of Poland. None of the
candidate states punishes the conduct, envisaged by art. 4 of the
Framework Decision.
The counterfeiting statutes do not cover the hypothesis of
unauthorised utilisation of the legal facilities and materials. Finally,
none of the candidate states complies with art.5 of the Framework
Decision, which protects the Euro against counterfeiting in the
period before its entry into circulation. In Estonia, Hungary and
Lithuania, the statute covers only currency that has been put into
circulation, and in the other systems, the problem is whether the
Euro qualifies as "money" before its entry into circulation.
c. C o n c l u s i o n s a n d r e c o m m e n d a t i o n s
The reports of Professor Grasso and Dr. Sicurella reveal serious

lacunae in the protection of the financial interests of the European
Communities in several candidate states in the study.
As far as the acquis-offences (EU fraud, corruption, money laundering
and receiving, participation in a criminal organisation (conspiracy) and

counterfeiting the Euro) are concerned, national legislation presents a
series of loopholes that could be filled by introducing adequate
legislation covering all the conduct that should be punishable under
the various instruments that constitute the acquis. The most
important loopholes reported can be summarised as follows. Firstly,
non-disclosure of information to the authorities (in the statutory
provisions on subsidy frauds) is often not penalised. Secondly,
misapplication of funds for purposes other than those for which
they were originally granted goes unpunished in most candidate
states. Thirdly, money laundering statutes do often not include ECfraud as a predicate offence. Fourthly, corruption statutes often do
not apply to foreign and European civil servants. Finally, the
legislation on counterfeiting does not cover a number of situations
including the import, export, transport, receiving, obtaining of
counterfeit currency and the fraudulent making and receiving of
materials that can be used for the purposes of counterfeiting.
This leads to the conclusion that, in many candidate states in the
study, the financial interests of the EC are not sufficiently protected
by statutory provisions that criminalize fraudulent behaviour as
defined in the various acquis-instruments discussed in this Chapter.
This results in the impunity of various forms of fraudulent
behaviour if committed inside the boundaries of the state in
question. Moreover, it may be an obstacle to international
cooperation, as double criminality, which is an essential condition
for many forms of international cooperation, will often be lacking
(see further infra, Chapter I 0).
Most of the typical Corpus juris.offences, market.rigging, conspiracy,
misappropriation of funds by public o~dals, abuse of office, disclosure of

secrets are not, as yet, punishable in the majority of the candidate
states, but there are no objections in principle against the
introduction of such offences in the legal orders of these states.The
experts believe that "Corpus Juris-offences" that do not yet exist in
the acquis (abuse of office, misappropriation of funds, disclosure of
professional secrets) need better protection in the acquis. An easy
way to achieve this result would be the adoption of the CorpusJuris.
Counterfeiting the Euro was not included in the Corpus Juris and
is therefore not a "corpus juris-offence'.There are arguments against
and for its inclusion. An argument against inclusion would be that
counterfeiting the Euro is not, strictly speaking, an offence against
the financial interests of the EU. But then, one might as well
ERA
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consider the protected interest to be both European and national.

There are indeed two sides to Euro coins, a "European" and a
"national" side, symbolizing respectively European public faith - foi
publique (the one side of the coins) and national public faith - foi
pubtique (the other-side of the coins). Investigative powers in
relation to the Euro have been given to Europol (acting under the
Third Pillar) and not to OLAF (where it would be cross-pillar (First
and Third)) 3~.
Counterfeiting the Euro should, in our view, be an offence on the
list for which Eurojust should be competent, as is being currently
proposed in the draft framework decision on pro-Eurojust. If a
European Public Prosecutor were to be introduced, it would be worth
examining the question of including euro-counterfeiting within his
investigative and prosecutorial powers by adding it to the list of
Corpus Juris-offences3L
The counterfeiting of the Euro may be a good example to test
the current "cross-pillar approach" in the future. Firstly, the acquis
is spread over various First Pillar (Regulations) and Third Pillar
Instruments (framework decisions). Secondly, "jurisdiction" over
counterfeiting the Euro is given to "Third Pillar" organisations
(Europol and probably Eurojust) organs who will only have powers
of coordination, not of central enforcement. It will be interesting to
see whether and how this will work when the Euro will be
counterfeited in third countries, outside the EU. Wo will be the
spokespartner for, say,theTurkish authorities, in case there is a case
of counterfeiting in Turkey? Will Europol coordinate the
investigations, and Eurojust judicial assistance and eventually
prosecution? Will this differ with the turning presidency of the
European Council, every semester? Would it not be better to bring
this under the "First Pillar" for that purpose? There is no room in
this study for a more detailed study on this. We believe that the
counterfeiting of the Euro may be the typical example to have in
mind when conducting the reflection called for in Proposal t (in
conclusion of this study): is the current cross-pillar approach (First
and Third Pillar) to be retained37?
In concluding Chapter I, the following recommendations are
formulated.
Recommendation
Candidate states that have not yet (adequately) implemented the

"acquis-offences" referred to in Chapter I of this study (EU fraud,
corruption, money laundering and receiving, participation in a
criminal organisation (conspiracy) and counterfeiting the Euro) by
adopting appropriate provisions in their national criminal laws,
should do so before accession.
Due regard should be given to the duty of assimilating offences
against the EU with corresponding national offences (art. 280 (2)
EC-Treaty).
Recommendation
The implementation of Corpus Juris offences referred to in

Chapter I of this study (market-rigging, misappropriation of funds,
abuse of office and disclosure of professional secrets) is necessary
for an effective protection of the financial interests of the European
Community.They should be introduced in the acquis through the
adoption of appropriate legislation. An easy way to achieve this
result would be the adoption of the Corpus Juris.
35 CouncilRegulation(EC) No. 1338/200tof 28june200i layingdown measuresfor
the protectionof the Euroagainstcounterfeiting,O.~cioljoumdNo. L 181,47.2001,
p. 6-I0.
36 Amendingthe CorpusJurison this pointwouldneed a concomitantamendmentof
the CorpusJuris-articleon sanctions(whichshouldprobablyhavea highermaximum
thanthe maximumof S yearsthat wouldapplyto CorpusJuris-offences),
37 See ProposalI, infro,Proposalsfor considerationat the Laekensummit,p, 132
ERA - Forum - 3 - 2001
b, C o m p a r a t i v e analysis c a n d i d a t e states
Recommendation 3
The offence of fraud by gross negligence should be retained in

the Corpus Juris (art. I(I) and 9) but its application to heads of
businesses and legal persons may need to be further examined (see
also Recommendations 6 and 8).
Recommendation 4
A question for further examination is whether counterfeiting the

Euro, which is not an offence against the financial interests of the
European Community in the narrow sense, should be included in
the CorpusJuris as a CorpusJuris-offence.
CHAPTER
2 - CRIMINAL

II
RESPONSIBILITY
a. Introduction
The objective of this part of the study is to draw a picture of the

rules on criminal responsibility in the candidate states in relation to
the offences enumerated in Chapter I.The aim is to assess whether
the rules on criminal responsibility in the candidate states are in
accordance with the acquis communautaire on criminal responsibility
and whether candidate states would be able to receive the Corpus
Juris rules on this subject, if the CorpusJuris would be introduced.
In general terms the acquis communautaire on the subject of
criminal responsibility can be said to be "the tradition of the
juridical-penal European culture" on this subject, as was observed
by Professor Bacigalupo. In more specific terms, the acquis contains
provisions that address a number of particular aspects of criminal
responsibility for EU-offences. For example, definitions of offences
in the instruments mentioned in Chapter I of this study sometimes
contain specifications as to the mental element (intention,
negligence) or the punishability of attempt, instigation to commit
the offence etc.Thus, the "PtF-Convention T M asks member states to
take the necessary measures to make the intentional commission of
fraud offences punishable and to make the instigation of or the
attempt to fraud offences punishable in their domestic legislation. In
addition, specific problems that arise in the area of prosecuting
financial crimes have been addressed, such as the responsibility of
heads of businesses and of legal persons.Thus, the Convention on the
Protection of the European Communities' Financial Interests
(I 995) 39and its Second Additional Protocole have laid down specific
provisions on these subjects.The 1997 Convention on Corruption
involving EU-officiats and officials of EU Member states~' has
incorporated a provision on the responsibility of heads of
businesses.The 1998 Joint Action on Private Corruption~2and the
2000 Framework Decision on the counterfeiting of the Euro
contain~ a provision on the criminal responsibility of legal persons~4.
The principle of individual culpability is one of the "traditional
principles" that form the basis of the Corpus Juris. The Corpus
devotes a Chapter to criminal liability, which is applicable to all the
crimes that are listed in the CorpusJuris (i.e. most of the offences in
Chapter I of this study), in an attempt to formulate general rules
that would apply co all Corpus Juris-offences (cf. the general part in
domestic criminal codes, which is applicable to all the crimes listed
in the special part of these codes).The Corpus follows the acquis and
where necessary tries to develop it and refine it further in response
to criticisms that have been formulated. On those points that are
not covered by the acquis it sets out a number of general principles
that reflect, where possible, the legal traditions in the member
states of the EU in an attempt to make a synthesis combining and
bridging differences between such systems.
I, R E S P O N S I B I L I T Y
OF NATURAL
PERSONS
This paragraph addresses the question as to the way in which the

responsibility of natural persons is structured in the candidate
states, more particularly the question of the conditions under
which a person becomes a party to an offence (doctrine of
participation). It looks at both criminal responsibility and
responsibility under administrative regulations on the subject of
EU-offences.
The acquis on the subject is fragmented and unsystematic, Some
instruments require Members States to legislate on the subject of
participation (for example PIF-Convention, art.2 (3)) whereas
others, for example the 1997 anti-corruption convention, are silent
on the subject, Regulation No 2988/95 of 18 December 1995 on
the Protection of the European Communities' Financial Interests
does not distinguish between various categories of participants to
the irregularity.
The Corpus Juris-provision on the subject is art. II, which
distinguishes between the principal offender, the inciter and the
accomplice. In the case of the accomplice, the maximum penalty is
reduced by one quarter.Article I I reflects the so-called "dualistic"
approach to participation. This approach distinguishes between
various forms/degrees of participation to an offence, as opposed to
the "monistic" approach which does not distinguish between
different categories of participants to an offence. Under the
monistic approach, this differentiation is not a criterion for the
assessment of criminal responsibility, but only a factor determining
the severity of the sanction. The Follow Up-Study of Corpus Juris
showed that, in the current member states of the EU, the "dualistic
approach" prevails over the "monistic approach", which is only
followed in Austria, Denmark and Italy~5. On the other hand, the
monistic approach seems to be the general model for
administrative offences in most member states: for such offences,
the distinction between primary and secondary parties to offences
is usually not made.
Although this is not explicit in the text of art. I I, the drafters of
CorpusJuris envisaged the application of the "principle of accessorial
liability", according to which secondary parties to the crime
(accessories) can only be responsible if the main offence was
actually committed. For example, if the incited person fails to
commit the crime, the inciter will go unpunished".
As far as participation in criminal offences is concerned, all
candidate states, with the exception of Slovenia, follow the dualistic
approach. Whereas all candidate states accept the notion of coperpetration following a prior agreement between the parties to
38 Conventionon the Protectionof the EuropeanCommun~ies'Finanda;Interests
(1995),seesupra,ChapterL
39 Conventionon the Protectionof the EuropeanCommunities~FinancialInterests,
O~cialjaumalNo.C 316,27,11,1995,p,48.
40 Second Protocol to the Conventionon the protection of the European
Communities'financialinterests,Luxemburg19june 1997,O~cialJaumalNo,C 22l,
~9,07.t997,p.I I.
4~ Conventionon the FightagainstComupt~oninvoMngOfi]da~sof the European
Communitiesor Of~ciaIsof MemberStatesof the EuropeanUnion,Brussels,26 May
1997,O~cialJoumatNo, C 195,25,06.1997,p. 2.
42 JointActionon Corruptionin the PrivateSector,O~cialJoumalNo.L 358,3I, 12.1998,
p.2,
43 CouncilframeworkDecisionof 29 May 2000on increasingprotectionby criminal
penalties and other sanctionsagainst counterfeiting in connectionwith the
introductionof the euro,O~cialjournatNo. L t40, 14.06,2000,p. ~.
44 SeealsoFrameworkDecisionof 28 May200t combatingfraudandcounterfeittngof
non-cashmeansof payme~,loc.cir. and art. 3 of the Draft CouncilFramework
Decisionon the strengtheningof the penatframeworkto preventthe facilitationof
unauthorisedentryand residence,t0075/01 DROIPEN54 MIGR51 COMIX457,
05.07.200I, p.9 andart.7
45 Delmas-Mart);M,op.cir.,72,
46 Detmas-Marty,M,ap.cir.,73.

of the E U in the Candidate States
the crime, there are no common rules to distinguish between coperpetration and the mere aiding and abetting. The "indirect
participation" through another person gives rise to criminal
responsibility in Estonia Lithuania and Poland (only if the other
person was "directed or ordered"), but not in Romania and
Slovenia.AII candidate states apply the theory of accessorial liability,
according to which secondary parties to the crime (accessories)
can be responsible only if the main offence was actually committed.
Poland is the exception: under Polish law, the act of instigation or
aiding and abetting is punishable per se, even if no main offence was
committed.
Professor Vogel welcomes the fact that several candidate states
recognise "organisers" as a separate category of secondary parties
to the offence.This form of criminal responsibility is recognised in
the Czech Republic, Estonia, Lithuania and the Slovak Republic. It is
in line with a modern trend in criminal law, which, unlike the
traditional "bottom up approach" according to which responsibility
starts with the person who actually performs the offence, is more
"top-down" oriented. Under this new approach, which has recently
been adopted in Germany, the focus is on the duties of the
respective participants rather than on the distinction between the
immediate (direct) participants to the crime, and the indirect
participants (aiders and abetters, instigators). The responsibility of
the "organiser" goes beyond the traditional "bottom-up" approach
which usually requires proof of either causality (that the person was
either able to prevent the offence) or fault (intent or at least
negligence with respect to the commission of the offence). The
expert believes that the introduction of this form of responsibility
in the acquis and in the Corpus Juris would be an important step
forward.
The situation is less clear for administrative offences: several
candidate states (e.g. Hungary and Estonia) follow the monistic
approach, whereas others, including Bulgaria, apply the same rules
to both criminal and administrative offences (and thus the dualistic
approach). The expert notes that it is difficult to make general
statements on the subject of administrative offences in the
candidate states because the situation is, in several of these states,
very complex.
2. RESPONSIBILITY OF H E A D S OF BUSINESSES
This paragraph addresses a special category of physical persons:
"decision-makers" in private and public enterpriseslorganisations
etc. (responsibility in organisations). The responsibility of the
organisations themselves is discussed in point 3 below. This
paragraph examines whether candidate states allow the
prosecution and punishment of heads of businesses in relation to
the crimes that are the subject of this study (see the list of offences
in Chapter I).
The acquis-provision on the subject of the responsibility of heads
of businesses is art. 3 of the PIF-Convention, which asks member
states to take the necessary measures to allow heads of businesses
and persons with decision-making power or powers of control
within a business to be held responsible for EC-fraud committed by
persons acting under their authority or on behalf of the business47.
Article 12 of the Corpus Juris has elaborated further on this
article. It was partially redrafted in CorpusJuris 2000 in response to
the observations made by the national reporters in the Follow
Up-Study.Whereas the original version of the CorpusJuris restricted
this form of responsibility to decision-makers in private enterprises,
CorpusJuris 2000 extends it to public officers who knowingly allow
an offence under art. I-8 to be Committed by persons under their
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12
E R A - Forum - 3 - 2001
authority.Another change in comparison with the original version

is that, following the example of w 130 of the German
Ordnungswidrigkeitengesetz, responsibility was extended to cases of
sub-delegation within a business (art. 12 w in which case the
person who delegated the power can raise a defence (art. 12 w 4).
Where liability is incurred under article 12, the maximum penalty is
reduced by half~.
As acknowledged by Professor Delmas-Marty in her final report
to the Follow Up-Study, this was a quite sensitive subject, in view of
the divergences between the legal systems of the fifteen member
states.The Corpus Juris opted for a formula that does not establish
criminal responsibility for acts committed by third persons
(vicarious responsibility) but instead adheres to the principle of the
individual criminal responsibility of the "decision-maker" within the
enterprise whose responsibility lies in the fact of having knowingly
allowed the offence to be committed.
Considering the fact that this form of responsibility is fairly
unusual in the current member states, it is not surprising that the
candidate states are quite unfamiliar with it.A number of specific
statutes exist which cover specific offences, but no candidate state
mentions a provision of the kind envisaged by art. 3 PIF-Convention
or art. 12 Corpus Juris.The general rules on criminal responsibility
do not seem to apply as they presuppose an active and intentional
contribution of the head of the business or person with powers of
decision and control within an enterprise. Even though some
candidate states acknowledge the concept of commission by
omission, this concept has not been applied to situations of the kind
discussed here. Professor Vogel also mentions that the concept of
delegation of powers is unknown in the candidate states. None of
the states in the study recognises strict or vicarious responsibility
of heads of business.The national reporter for Hungary fears that
the introduction of the criminal liability of managers or directors
for illegal activities of their subordinates would raise constitutional
problems.
Professor Spinellis, in conclusion of his study on sanctions,
proposes the introduction of quasi-penal sanctions for legal
persons. See infra, Chapter 3 and Recommendation 8.The question
remains, however, how this is to be reconciled with the idea of
coercive measures, such as, for example, telephone taps and
computer searches. Usually, such invasive measures are only
available for criminal offences, not for quasi-criminal offences.
Would this proposal not limit the availability of coercive measures
in the case of legal persons?
3 . R E S P O N S I B I L I T Y OF O R G A N I S A T I O N S
This paragraph addresses the question whether "organisations"
(with/without legal personality; private/public) are legally "capable"
of committing the offences set out in Chapter I of this study. It
deals with responsibility of organisations, as opposed to the
responsibility in organisations, which was discussed in the previous
section.Are candidate states legally equipped to do what the acquis
communautaire tells them to do on this point and would they be
capable of receiving the CorpusJuris if it were to be adopted?
The EU has traditionally avoided addressing this thorny question
by labelling offences committed by undertakings as "administrative"
rather than criminal, an approach which criminal lawyers have
47 The full text of art. 3 of the PIF-Convention is as follows: "Each Member State shall
take the necessary measures to allow heads of businesses or any persons having
power to take decisions or exercise control within a business to be declared
criminally liable in accordance with the principles defined by its national law in cases
of fraud affecting the European Community's financial interests, as referred to in
Article I, by a person under their authority acting on behalf of the business."
48 Delmas-Marty, M, op. cit. p. 76 (French version only).
ERA
- Forum
- 3 - 2001
always considered to be "une sauce pour faire passer le poisson"49.The

reason for "swallowing this fish" is twofold, and leads to a curious
alliance between criminal lawyers and constitutional and
international lawyers. Firstly, many criminal lawyers are opposed to
the very idea of applying the criminal law to legal persons or
organisations. By labelling the sanctions as "administrative" instead
of "penal sanctions", they become more acceptable even though the
sanction may be more or less the same ("administrative" fines
versus "criminal" fines). Secondly, many constitutional~international
lawyers hold the view that the EU cannot legislate in criminal
matters. Labelling the piece of legislation as "administrative" is again
the sauce to swallow the fish. A prominent example is Regulation
No. 17/62 on Competition Law~~ which explicitly pledges its
allegiance to this principle, which has not prevented the European
Court of Justice from applying general principles of criminal law to
the undertakings that are the subject/object of the fines that are
imposed upon them by the Commission.
In the field of EC-fraud, no fines can be imposed directly by the
Commission, so the question does not arise in the same way as it
does for Regulation No. 17/62. It nevertheless goes beyond saying
that, as in competition law, many of the offences that are the subject
of this study are committed by undertakings. The acquis
communautaire on EC-fraud (supra, Chapter I para I) explicitly
addresses organisations. Firstly, Council Regulation No 2988/95 is
applicable to all "economic operators TM. Secondly, the Second
Additional Protocol to the PIF-Convention requires member states
to ensure liability of legal persons (avoiding the question of the legal
nature (administrative or penal) of this responsibility). The EUFramework Decision on the Counterfeiting of the Euro contains an
almost identical article on this subject.
The Corpus Juris also provides an article to the effect that
organisations can incur criminal responsibility for Corpus Jurisoffences. As in the case of criminal responsibility of heads of
businesses, i.e. of persons in organisations, supra, the criminal
responsibility oforganisations is treated so differently in the various
current member states that it was impossible for the drafters of the
Corpus Juris to establish a common ground which could offer a
synthesis of the existing systems. Despite the incompatibilities with
some national legislations of the current EU member states (for
example Greece and Italy), the article was retained in Corpus Juris
2000 s2.
The comparative analysis of the candidate states by Professor
Vogel shows a comparable picture.With the exception of Lithuania
and Slovenia, none of the candidate states provides for the criminal
responsibility of organisations. However, the Czech Republic,
Estonia, Romania, the Slovak Republic and Hungary are preparing
draft legislation on this subject. The majority of candidate states
uses administrative sanctions to resolve the problem of the liability
of legal persons.The expert notes that, due to the various concepts
of administrative offences and administrative sanctions, it is nearly
impossible to draw a general picture synthesising the legislations in
the candidate states. One of the similarities that is striking seems to
be the requirement of the dangerousness of the legal
person/organisation.
/
13

culpa is not written explicitly into the European Convention on

Human Rights but is widely recognised in the national legal
traditions of the current member states of the EU. On that basis,
the principle of culpability can be said to belong to the acquis.
However, the content of this principle is far from clear.
The Follow Up-Study showed that the national criminal justice
systems of the current member states are inspired by the same
general principles on criminal responsibility, even if the way in which
they have been codified or spelled out in case law may vary from
one state to another. Professor Bacigalupo explains this by pointing
to the common historical antecedents, not only codifications like
the French penal codes of 1810 and 1832 and the Bavarian Code of
1813, but also the influence of great thinkers likeVon List, Bambery
etc.The same kind of differences and similarities can be found in the
candidate states, which is not surprising given the fact that recent
codifications in candidate states have been inspired by codifications
in current EU member states.
There is, however, one basic characteristic that marks a difference
between "occidental criminal justice systems" and criminal justice
systems in the candidate states:the emphasis on social dangerousness
as an element of criminal responsibility. This is the inheritance of
forty years of Socialist penal doctrine in the candidate states. In the
early years of this doctrine (e.g. the 1922 and 1926 Soviet penal
codes), the substantive criterion for criminal offences used to be
whether there was a socially dangerous action.The legality principle
was replaced by the criterion of "social dangerousness", which also
meant that criminal responsibility was excluded where there was
no social danger or social harm. Even though socialist penal law
later reintroduced the principle of legality, the element of social
dangerousness remained an important factor.
Most new codifications of penal law of the candidate states have
retained the criterion of social dangerousness as a basic element for
a criminal offence. Examples are the Polish Code (1997), the
Slovenian Code (1994) and the Czech Penal Code.This concept is
not totally unknown in the current EU member states.The expert
gives the example of section 42 of the Austrian criminal code which
exempts defendants from punishment in cases where the act is not
blameworthy ("mangelnde StrafwOrdigkeit der Tat"). However, the
concept of social dangerousness seems to be broader and could, in
theory, lead to cases where crimes could go unpunished where no
social dangerousness exists.
This being said, the EU expert asserts that it is impossible to say
with certainty that socialist criminal law has developed a concept of
culpability that is different from the culpability principle in the
current member states of the European Union.All candidate states
recognise the principle of culpability, either in statutory law or in
the constitution (e.g. Estonia) and in some states, e.g. Hungary, it has
been acknowledged by the constitutional court. The expert draws
attention to the importance of constitutional courts in the current
member states (e.g. Germany, Italy and Spain) as to the
development of the culpability principle and expects the same to
happen in candidate states, which all have constitutional courts
which may give a constitutional status to this principle.
4. P R I N C I P L E O F C U L P A B I L I T Y
This paragraph addresses the more general question about how

rules on "culpability" have been spelled out in the legal systems of
the candidate states. There are no specific acquis-rules on the
principle of culpability and the question what kind of culpability is
required for a particular offence. The principle nullum crimen sine
49 Van Binsbergen, W.C., "Le droit p~nal des Communaut6s Europ~ennes", in Droit p6nal
europ~en, Brussels, Presses Universitaires de Bruxetles, 1970, p. 204.
50 Regulation No. t7/62. First Regulation implementing Articles 85 and 86 of the Treat~;
O~icioljournat No. 013, 21.02.1962, p. 0204 - 021 t.
51 Council Regulation (EC, EURATOM) No. 2988/95 of 18 December 1995 on the
Protection of the European Communities' Financial Interests, Ol~TciafJoumalNo. L 312,
23.12,1995, p, I - 4 .
52 Delmas-Marty, op. at., 74.

5. F O R M S O F C R I M I N A L R E S P O N S I B I L I T Y
This paragraph examines the forms of criminal responsibility in
the candidate states in relation to the offences that are the subject
of this study: is the required mental element (subjective element of
the crime, mens tea) intention, or can the crime also be committed
if the author acted recklessly or out of negligence.
Generally speaking, the criminal laws of candidate states know
the same categories of the mental element as can be found in the
current EU member states. There are some differences in
formulation, some of which can be traced back to linguistic
distinctions. Nevertheless, all systems know the concept of dolus
(both direct and indirect) and of culpa (i.e. fault or negligence). The
"social dangerousness of the criminal action" is an important
element, for example in Hungary and SIovenia, but Professor
Bacigalupo does not believe that this leads to a conceptual
divergence of criminal responsibility between candidate states and
the current member states of the EU (see above).
One point for further consideration is the concept of gross
negligence/recklessness for EC-fraud.The offences that are defined
in the acquis are all intentional offences.Thus, EC-fraud as defined in
the P/F-convention only applies to "intentional" acts or omissions,
without, however, further defining the notion of intentionatity.
Active and passive corruption in the relevant instruments
mentioned above require "deliberate actions". The administrative
offence described in the PIF-regulation, however, is applicable to all
irregularities, not only to intentionally committed irregularities.
Corpus Juris on the contrary, retains the principle that the offences
it enumerates can only be committed intentionallys~,but allows one
exception. EC-fraud (art. I) can be committed recklessly or with
gross negligence (in which case it is called "assimilated fraud" (see
supra, Chapter I)).
As in the previous Follow-up Study, fraud by negligence was again
discussed during the present study. Most candidate states, like most
of the current member states, generally require intent for fraud
offences, but nevertheless accept exceptions to this principle,
usually in the field of fiscal fraud. Balancing the arguments in favour
of and against retaining recklessness/gross negligence as a form of
criminal responsibility in the limited case of EU fraud as defined by
art.I Corpus Juris (both fiscal fraud and subsidy fraud), we believe
that the arguments in favour prevail. Professor Delmas Marry rightly
observes:
"[...] to limit the offences in art. I to intentional offences only, would
make it impossible to take into account the duty of care which is
expected from someone who receives subventions gratis.
Furthermore, it would weaken the effectivenessof the text, bearing
in mind that the notion of mistake is widely accepted and reduces the
scope of liability for recklessness and negligence".
Read together with the implementing provisions on
recklessness/gross negligence, art. I Corpus Juris is much less farreaching than it seems. Moreover, a clear distinction exists between
intentional EC-fraud and negligent EC-fraud as to the penalty: in
case of negligent EC-fraud, the maximum penalty shall be reduced
by one third (art. 15 w In addition, the last paragraph of article I
Corpus Juris allows "repentant" fraudsters to escape punishment by
correcting the inaccuracies and omissions in a false declaration, or
by withdrawing an application made on the basis of false
documents, or by informing the authorities of the fact they
originally omitted to reveal.
Punishing EU fraud committed recklessly would require
legislative changes in many candidate states. However, there do not
seem to be fundamental obstacles against the reception of the
Corpus Juris on this point. As observed by Professor Vogel, some of
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14
E R A - F o r u m - 3 - 2001
the criticisms should be addressed, not by reformulating the general

article on mens tea (art.9 CorpusJuris) but by a further reflection on
articles 12 and 13 (on responsibility of heads of businesses and
organisations respectively). The expert has formulated concrete
submissions on this point that deserve further consideration.
6. M I S T A K E
This paragraph examines the position in the criminal laws of the
candidate states on the doctrine of mistake as a defence against
charges of offences that are the subject of this study.
There is no specific acquis on this subject. The PIF-convention
does not refer to the defence of mistake. However, the expert
believes that it is implicitly contained in the convention: as offences
under the PIF.convention are intentional offences, the author will go
unpunished if he acted (or omitted to act) by mistake.
The Corpus Juris distinguishes between mistakes as to the
constituent elements of the crime and mistakes as to the legal
prohibition. Mistakes as to the constituent elements of the crime are a
complete defence, but only for intentional crimes. This defence
would thus not be available to cases of "assimilated fraud" in art. I
w 2 Corpus Juris.
Mistakes as to the legal prohibition are only a complete defence if
the defendant could not have avoided the mistake. If the mistake
was avoidable, the penalty is reduced and the judge may not apply
the maximum penalty. In the latter case, the mistake is not a
defence, but only a mitigating circumstanceS4.The Follow Up-Study
showed considerable divergences between the legal systems of the
current member states on this point. Professor Delmas-Marty
observes that the divergences seem stronger on this point than in
relation to the concept of criminal responsibility (mens tea)ss.
Mistakes as to the constituent elements of the crime are generally
accepted as a defence in all the candidate states: in all the states
concerned, this form of mistake negates criminal intent, except in
cases where the mistake could be avoided.According to Professor
Bacigalupo, there is a "total coincidence with the penal laws of the
EU Member states and the Corpus Juris" on this poin~
The rules on mistakes as to the legal prohibition are more
diverse in the candidate states, which resembles the diversity that
exists between the penal laws in the current member states. Some
candidate states do not recognize this defence at all (Bulgaria,
Lithuania and Romania), whereas other candidate states recognise
it, albeit in different forms (Estonia, Poland, Slovenia). There does
not seem, however, to be a problem with the reception of the
Corpus Juris on this point, were it to be introduced.
7.ATTEMPTS
This section examines the law of attempt in the candidate states
in relation to the offences in this study.The question is: where do
they draw the line between non-punishable preparatory acts and
criminal attempt and what is their position in relation to typical
questions in this area such as the "unattempted" attempt and the
impossible attempt?
53 Article 9 CorpusJunsprovides:"All the offencesset out above(Articles I to 8) re

quireintention,withthe exceptionof offences"considered"asfraud("d~litassimil~
la fraude")againstthe Communitybudget(Article I) for whichrecklessnessor gross
negligenceis sufficient."
54 Article f0 Corpusjuris runsasfoIlows:"Mistakeasto the constituentelementsof the
offenceexcludesintention.
Mistakeas to the tega~prohibitionexcludesliabilityif it wouldhaveinevitablybeen
committedby a careful,sensib!eperson,ffthe mistakewasavoidable,the penaltymay
be reduced,andthe judgemaynot imposethe maximumpenalty(seeArticle 14)'.
The drafter'sof this articlewanteda cleartypographicalseparationbetweenthe two
varietiesof mistake,by separatingthem in two paragraphs.Thiswas,unfortunatel%
omittedin the Englishversionof CorpusJuris2000.
55 Delmas-Marty,M,ap.cir.,72.
E R A - F o r u m - 3 - 2001
The acquis communautaire is not very systematic in its approach

to attempts. Some texts require states to criminalize the offence in
attempted form, whereas others are silent on the subject. For
example, art. I w of the PIF-Convention requires member states to
take the necessary measures to ensure that attempts to commit
the fraud as defined in w are punishable. The conventions on
corruption and the framework decision on the Euro do not
mention attempts.
The original version of the CorpusJuris did not mention attempts
either.This was criticized in the previous Follow Up-Study because
in some national systems, offences of the kind that are mentioned
in the CorpusJuris are only punishable in attempted form if there is
an explicit provision to this effect, which led to a situation where
most CorpusJuris-offences would go unpunished in attempted form.
This led to the new art. I I his on criminal attempts.All CorpusJurisoffences, except conspiracy/membership of a criminal organisation
can be attempted.Attempted crimes are punished less severely (the
maximum is reduced by one third). "Unattempted" attempts, i.e.
where the offender voluntary desists from completion or
voluntarily forestalls completion, remain unpunished.
This seems to be in accordance with the way in which attempts
are punished in the majority of the candidate states.The EU-expert
concludes that the penal laws in these states are in total
compatibility with article II his Corpus Juris and are therefore able
to receive the article in their domestic legal systems.

Overall, legislation in the candidate states on the subject of
criminal responsibility seems to comply with the acquis
communautaire, which is itself quite vague as a general yardstick.
However, some loopholes persist in the field of the responsibility of
heads of businesses and of legal persons, where the acquis
communautaire has not been fully implemented in each candidate
state.
The requirement of social dangerousness,a common feature in the

legislation of the candidate states and a legacy of forty years of
socialism, affects both punishability and the measurement of the
sanction. It was impossible, for the purposes of this study, to assess
whether this criterion is of any practical relevance in relation to the
crimes that are the subject of this study.
As to EC-fraud by gross negligence or recklessness ("assimilated
EC-fraud"), the rules on criminal responsibility in the candidate
states show the same kind of differences as legal systems of the
current EU member states.The general picture on this subiect in
the candidate states looks very much the same as in the current
member states. There seem to be no fundamental obstacles to
reception of the CorpusJuris in the candidate states. For the reasons
explained above, we propose to retain this form of criminal
responsibility for EU-fraud.
In conclusion of Chapter 2, the following recommendations are
made.
Recommendation 5
acquis-rules on the responsibility of heads of business and of legal

15
application of this form of criminal responsibility when applied to

heads of businesses or other persons with powers of decision
(article 12 CorpusJuris) and to organizations (article 13 CorpusJuris).
Another question for further consideration is whether article 13
should be extended to organizations under public law.
CHAPTER
3 - SANCTIONS
This Chapter looks at the sanction system for fraud offences in

the candidate states. It examines whether national legal systems are
in conformity with the acquis communautaire and whether they
would be able to receive the CorpusJuris, were it to be adopted.
The acquis communautaire-instruments on this subject are the
1995 PIF-Convention ~, the 1997 Convention on corruption and the
2000 Framework Decision on the Euro, which all require member
states to provide effective, proportionate and dissuasive criminal
penalties. Some instruments require minimum-penalties. For
example, the 2001 Framework Decision on Money Laundering sets
an upper limit of not less than 4 years (article 3) ~7.The draft
framework decision on unauthorised entry and residence proposes
an upper limit of not less than 8 yearssS.
The acquis on administrative penalties for EU-fraud is laid down
in Regulation No. 2988/95.
The Corpus Juris contains a detailed provision on penalties and
measures (art. 14), sets out the general principles for the
measurement of the penalties (extent of penalties - art. 15) and
deals with the problem of penalties, incurred in the case of
concurrent offences (art. 17).

I. C R I M I N A L A N D
ADMINISTPu~.TIVE SANCTIONS
The above-mentioned acquis-texts on criminal sanctions for some

of the offences in this study do not further specify what these
sanctions should be or how they should be applied.They only say
that these sanctions should include, at least in serious cases,
penalties involving deprivation of liberty that can give rise to
extradition.The reason for the paucity in provisions is the prevailing
opinion that defining the sanctions is a matter for national law, not
EU or EC-law. The acquis-text on administrative sanctions, on the
contrary, is very detailed and includes administrative fines,
withdrawal of the wrongly obtained advantage and exclusion from
advantages.
The Corpus Juris has listed a number of penalties and measures
which are designed to reflects the penalties and measures that exist
in the current EU member states for the offences that are listed in
art.l-8. These are: custodial sentences, fines, publication of the
conviction, exclusion from future EC subsidies or from future
contracts with public authorities using Community funds, ban from
public office and confiscation.
Professor Spinellis reports the existence of the following criminal
sanctions in all candidate states: custodial penalties and pecuniary
penalties (each with varying upper limits), confiscation or forfeiture
or seizure, deprivation or banning of the right to exercise certain
persons should do so before accession (see also recommendation 8).

Recommendation 6
Gross negligence and recklessness should be retained as form of

criminal responsibility for EU-fraud (arts I(I) and 9 CorpusJuris).
However, further consideration should be given to the
56 Conventionon the Protectionof the EuropeanCommunities'Financialinterests

(1995),seesupra,Chapter t.
57 Council Framework Decision of 26 June 2001 on money laundering,the
identification,tracing,freezing,seizingand confiscationof instrumentalitiesand the
proceedsof crime,O~ciatJournatNo. L t82,05.07.2001,p. I
58 DraftCouncilFrameworkDecisionon the strengtheningof the penalframeworkto
preventthe facilitationof unauthorisedentryandresidence,10075/01DROIPEN54
MIGR51 COMIX457.05.07,2001.

of the EU in t h e Candidate States
activities and professions and to hold certain offices. Community

service exists in the Czech Republic, Hungary and Lithuania. The
administrative sanctions that are reported by Professor Spineltis are
of a great variety and include social censure, warning or admonition
(Bulgaria, The Czech Republic, Hungary, Lithuania and SIovenia),
confinement (Hungary), administrative arrest (Lithuania, Slovenia),
confiscation, financial penalties etc. Like Professor Vogel in his
report on criminal responsibility (supra, Chapter 2), Professor
Spinellis observes that there is no general criterion to distinguish
administrative from criminal offences in the candidate states.
As far as the reception of Corpus Juris by candidate states is
concerned, Professor SpineUis notes a few difficulties that, however,
are not insurmountable and could be dealt with by national
legislation. For example, most candidate states do not know the
day-fine system that is provided in art. 14 wI a Corpus Juris, and the
additional penalties in art.14 w Corpus Juris are not widely
recognised. In particular, the publication of the conviction does not as
yet exist in some of the states, but has been included in draft
legislation in Estonia, Hungary, and Romania. The exclusion from
future subsidies is not expressly provided in a number of candidate
states (Bulgaria, Estonia, Hungary, Lithuania, the Slovak Republic and
Slovenia)" but there is no formal impediment against the
introduction of this sanction in candidate states. From this
perspective, the situation in the candidate states does not seem to
be different from the current EU member states.The Follow UpStudy shows that the day-fine system is not applied everywhere and
that some of the additional penalties such as the exclusion from
future subsidies are unknown in many member states. In his
horizontal report, Professor Spinellis makes a number of detailed
submissions for legislative change in the candidate states.
As to the severity of the sanctions, the EU expert notes that, in
comparison to Corpus Juris 2000, custodial penalties in candidate
states are often higher than the maximum of 5 years provided by
the Corpus,whereas pecuniary penalties are often lower.The expert
does not believe this to be an insurmountable difficulty that could
not be resolved by national legislation.The suggestion, made by the
national rapporteur for Slovenia, to the effect that the margins of
fines and pecuniary penalties should depend on the living standard
of each state, is not acceptable in the eyes of the EU-expert, as it
would contradict the Corpus Juris objective of creating a unified
system of penalties.This being said, nothing would prevent national
courts to impose the amounts most adapted to the living standards
of their country as part of the measurement of the sanctions in
concrete cases.
2. S A N C T I O N S
AGAINST
LEGAL ENTITIES
Criminal sanctions against legal entities exist only in Lithuania and

SIovenia, which are the only candidate states that provide criminal
responsibility for organisations (supra, Chapter 2). However, most
candidate states allow the application of administrative sanctions to
legal entities, with the exception of Hungary. There are, however,
proposals for legislative change towards introducing criminal
liability of legal entities, not only in Hungary but also in Romania. In
Estonia and Poland, the introduction of such liability would not
meet with significant opposition. Only the Bulgarian and Czech
rapporteurs express hesitations in this respect. Even in the two
latter countries, there do not seem to be constitutional obstacles
against the reception of this article of the CorpusJuris, if it were to
be introduced. Professor Spinellis proposes to resolve this problem
by labelling the sanctions as quasi-penal or administrative.
E R A - Forum
16
3. M E A S U R E M E N T
- 3 - 2001
OF THE SANCTION
The acquis does not contain rules on the measurement of the

sanction, which is in line with the current opinion according to
which this is a matter to be decided by states, not by the EU or the
EC.
The CorpusJuris has addressed the measurement of the sanctions
in art. 15, which states that the penalties applied to Corpus Jurisoffences shall not exceed the range justified by the fault of the
offender as to the seriousness of the offence, and the extent of his
participation in it. This is an application of both the principles of
culpability and of proportionality, which is one of the general
principles that underlie the CorpusJuris.
In line with the findings of Professor Bacigalupo on the subject of
culpability, Professor Spineltis notes the importance of the element
of social dangerousness, in this case as a factor that is decisive in the
determination of the sentence. This is recognized in nearly all
candidate states. The fault of the offender as a criterion to
determine the sentence is reported in the national reports for
Estonia, Poland, Slovenia and also Lithuania and Romania.
4,AUTHORITY
WHICH
SUPERVISES T H E S A N C T I O N S
Under the acquis, no special rules exist on the supervision of the

execution of the sanctions: this is within the jurisdiction of national
authorities, even for administrative offences under Regulation No.
2988/95 (art. 2 w 4) ~~
Under the CorpusJuris, the European Public Prosecutor would be
competent for ordering and overseeing the implementation of the
sentence (art. 23 Corpus Juris). The actual enforcement of the
sanctions would be the responsibility of the member states,
alongside the European Public Prosecutor.
In the candidate states, various systems of supervision exist,
ranging from supervision by courts (Hungary, Bulgaria, Poland
(penitentiary courts)), courts and the Ministry of Justice (the Slovak
Republic, Slovenia), the court and the public prosecutor (Romania)
to the public prosecutor, in the case of certain penalties only
(Hungary, Romania, Czech Republic, Slovak Republic).
Professor Spinellis asserts that this variety of rules will not be an
obstacle to the reception of art. 23 Corpus Juris, if it were to be
adopted. As far as administrative sanctions under Regulation No.
2988/95 are concerned, they may be enforced without problem by
national authorities by the time of accession. To date, not all
candidate states have however provided administrative sanctions of
the kind provided by the Regulation.
5. P E N A L T I E S I N T H E C A S E O F C O N C U R R E N T
OFFENCES
The CorpusJuris addresses two categories of concurrent offences:

firstly concurrence between CorpusJuris offences, secondly between
Corpus Juris offences and national offences. The first version of the
Corpus Juris also addressed the question of concurrence between
Corpus Juris-offences and administrative and other offences, but this
part was not retained in CorpusJuris 20006L
In the first case, a further distinction is made between concursus
idealis (where a single act or omission infringes more than one
CorpusJuris-offence) and concursus realis (where a series of separate
acts or omissions infringe more than one Corpus Juris.offence).This
distinction reflects the distinction that exists in many current
member states of the EU.
59 Seealsoinfra,Chapter8 (Recovery),
60 This paragraph runs as follows:"Subject to the Community raw applicab/e~the
proceduresfor the applicationof Communitychecks,measuresand penaltiesshallbe
governedby the lawsof the MemberStates".
61 For the reasonsbehindthis change,Dermas-Marty,op. cit,,77,
E R A - Forum - 3 - 2 0 0 1
Although many candidate states make the same distinction, both

categories are dealt with in the same way, that is with a penalty
increase that, like in the current member states, varies from one
state to another.
In the case of concurrence between national offences and Corpus
Juris-offences, a problem could arise out of the fact that the
penalties that exist for corresponding fraud offences in the
candidate states are, in general, higher than the penalties that could
be imposed under the Corpus Juris. This problem is resolved by
art.35 w (complementarity of national taw). In this case, national
law can be applied, and thus, if the sentencing court finds it
appropriate, the severest sanction6z.
c. Conclusions and r e c o m m e n d a t i o n s
Criminal sanctions of the kind provided in the acquis-instruments

(custodial penalties, fines, confiscation) are available in all candidate
states in the study. The conclusion therefore is that the criminal
sanctions that are available in the candidate states are adequate for
the protection of the financial interests of the European
Community. In combination with the conclusions of Chapter I, it
can be said the lacunae lie, not in the absence of adequate criminal
sanctions in the candidate states, but in the absence of adequate
criminalisatJons in some of the states in the study.
As far as administratJve sanctions are concerned, many candidate
states seem to lack some of the sanctions that they will have to
apply under Regulation No. 2988/95. For example, it is essential that
states such as Bulgaria, Estonia, Hungary, Lithuania, the Slovak
Republic and Slovenia introduce the possibility to exclude
fraudsters from future EU subsidies, as is recommended in
Recommendation 7.
The measurement of the legislation by the yardstick of the Corpus
Juris shows that some of the sanctions that are provided in the
Corpus Juris do not exist in some candidate states. For example, if
the Corpus Juris were to be introduced, provisions should be made
to allow day-fines and the publication of convictions in some candidate
states, where these penalties do not exist for the moment.This is,
however, only a question of adopting appropriate legislation.There
are no fundamental objections making it impossible for candidate
states to receive the CorpusJuris on this point.The same can be said
in relation to most of the other points discussed in the chapter on
sanctions: there are incompatibilities that require legislation were
the Corpus Juris to be introduced (for example in the case of legal
persons); there are no fundamental objections against its reception.
In conclusion of this Chapter 3, the following recommendations
are formulated.
Recommendation 7

sanctions (penal and administrative) that are required for the
acquis-offences referred to in Chapter I should do so before
accession.
In particular, confiscation to the benefit of the EU should be
provided, and persons who misappropriated EU funds should be
excluded from future subsidies and other advantages.
Recommendation 8
Appropriate penalties should be introduced to sanction legal

entities and organisations for infringements of acquis-offences.
Where penal sanctions are not available, the sanctions laid down
in the acquis (article 3 Second PIF-Protocol) and in the Corpus Juris
should be provided, at least in the form of quasi-penal sanctions
(see also recommendation 5).

17
CHAPTER 4 - INVESTIGATION
AND PROSECUTION
This Chapter examines the rules in candidate states on the

subject of investigating and prosecuting offences against the financial
interests of the European Community.
There is no acquis on the subject of investigative authorities and
their legal status 63. Nor is there an acquis on the subject of
prosecutorial authorities and their status. General human rights
instruments prescribe that criminal proceedings, as a whole, must
be fair. However, general human rights instruments do not indicate
how states should organise their criminal justice systems on the
point of investigation or prosecution of criminal offences.The right
to a fair trial should be guaranteed and defendants should be tried
by an impartial and independent judge, but apart from that, there
are no precise rules about how investigation and prosecution
services should be organised.There is only one text which sets out
a number of general guidelines on the subject of investigation and
prosecution: Recommendation (2000) 19 of the Council of Europe's
Committee of Ministers on the role of public prosecution in the
criminal justice system. However, the legal value of this text, being a
recommendation, is limited.
The CorpusJuris does not contain specific provisions on the legal
status and nature of investigation authorities. It does, however,
contain detailed rules on the prosecutorial function: the central, and
most innovative part of the Corpus indeed revolves around the idea
of a European Public Prosecutor with direct investigative and
prosecutorial powers in the member states of the Union.
Even if the acquis does not tell current and future member states
how they should organise their investigatorial and prosecutorial
systems, it is very important that these systems are organised in
such a way that, overall, they produce procedural fairness.This is an
important political condition for judicial integration in the European
Union and the inevitable osmosis between legal systems bound by
the obligation to co-operate in criminal matters under the current
acquis (First Pillar (art.280 EC.Treaty)) andThird Pillar (cooperation
instruments). See further infra, Chapter 6 of this study (Procedural
Rights) and Chapter 10 (International cooperation).
There is also a practical dimension to the problem discussed in
this Chapter. It is essential that authorities in the candidate states
can cooperate with the authorities of the current EU member
states in coordination mechanisms such as the European judicial
network or Eurojust, or, in perhaps a more distant future, in a system
with a European public prosecutor. In other words, this Chapter will
say a lot about the question of how candidate states will be able to
receive Eurojust and, if it were to be introduced, a European public
prosecutor. It is therefore crucial to study the investigatorial
systems and the prosecutorial systems in the candidate states.
b. C o m p a r a t i v e analysis candidate states
I. L E G A L S T A T U S
AUTHORITIES
AND POWERS OF INVESTIGATIVE
Many, but not all candidate states have administrative investigation

bodies with far-reaching investigative powers. Examples are the
customs and tax authorities (Bulgaria, the Czech Republic, Estonia,
Hungary and Lithuania) or specialised agencies with competence in
the field of money laundering (Lithuania). In Romania, administrative
bodies have no judicial investigating powers.
62 Textquotedinfra,footnote I09.
63 Except,of course,the instrumentson Europeaninvestigationservices(Europo[and
OLAF),but theseare not the subjectof the examinationin Chapter4 of this Study,

of t h e EU in the Candidate States
Professor Vervaele notes that the role of the public prosecutor is,
in most of the candidate states, limited to the prosecution of
criminal cases and to some extent to the supervision of judicial
investigations. Unlike in most of the current member states of the
EU, public prosecutors in most candidate states are not an
investigating authority themselves.There are some exceptions, such
as Lithuania, Poland and Romania. In all other candidate states,
investigations are conducted by the police (or by administrative
authorities), and are not directed by the public prosecutors. The
latter act in a completely reactive capacity and are dependent on
the input of the police. In many candidate states, investigating
authorities function under the authority of the Ministry of the
Interior and sometimes have a military organisation.
There is no investigating judge in the candidate states, except in
Slovenia. Instead, some candidate states retain the function of
Investigator, which is a legacy of the communist past.The Investigator
is the main authority for conducting preliminary investigations. He
has powers that, in many current member states, are held by either
the public prosecutor or the investigating judge. Investigators
interrogate suspects, examine witnesses, conduct searches etc. At
the end of investigations, they formulate the indictment, which is
submitted to the public prosecutor. The Investigator exists in
Bulgaria, in the Czech Republic (where they are organised in a
Bureau), in Lithuania and in the Slovak Republic. In Bulgaria, the
investigators used to be part of the police force, but in 199 I, they
were transferred to the judiciary and are now considered to be
magistrates. The Bureau of Investigation in the Czech Republic is
still part of the Ministry of the Interior, but there are plans to
integrate it into the police structure. Investigators in the Slovak
Republic have a military status.
The expert wonders whether the far-reaching autonomy of
investigating authorities in several candidate states is in line with the
guidelines of the Council of Europe's recommendation on the
specific point of the relationship between public prosecutors and
the police.These provide the following:
"In general,public prosecutors should scrutinize the lawfulnessof police
investigationsat the latest when deciding whether a prosecution should
commence or continue. In this respect, public prosecutors will also
monitor the observance of human rights by the police (w
[...]
"States where the police is independent of the public prosecutor
should take effective measures to guarantee that there is
appropriate and functional cooperation between the Public
prosecutor and the police" (w
In contrast, Professor Vervaele notes that the situation in most
candidate member states is such that the "the de lure supervision is
de facto void and very rarely applied".
One could take this question a step further by wondering
whether the current acquis on the supervision of European police
services (Europol and OLAF) should not be examined in the light
of this recommendation and whether the CorpusJuris should not be
more explicit on this point as well. See further section c (ii) of this
Chapter and Proposals II and IV below~.
2. P O W E R S O F I N V E S T I G A T I V E
AUTHORITIES
Investigative authorities in the candidate states often have far

reaching powers, either administrative or judicial, such as arrests 65,
home searches, body searches, searches and seizures.These powers
often require the authorization of the public prosecutor, not always
of a judge. For example, in Estonia, Hungary and Poland, home
searches can be carried out with an authorisation of the public
prosecutor, but without, however, the requirement of a judicial
warrant. In Romania, the authorization of a judge is only required in
/
II
ERA o Forum
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the case of detention on remand. In most other candidate states,

investigative agencies have far reaching coercive powers.
Some candidate states have introduced legislation in the field of
special investigative techniques (controlled delivery, undercover
policing, secret surveillance etc.). Legislation of this kind has been
adopted in Bulgaria, Estonia, Poland, The Slovak Republic and
Slovenia.The Czech Republic and Romania are preparing legislation
on the subject.
ProfessorVervaele concludes that in some countries the division
of powers is to some extent problematic. He recommends that
those coercive measures that have an impact on civil rights should
always need at least an approval by the public prosecutor. Coercive
measures limiting the private rights of citizens should be decided by
a judge of freedoms.
3. L E G A L S T A T U S O F T H E P U B L I C P R O S E C U T O R
Professor Manacorda very rightly observes, 'The importance of

the Public Prosecutor goes much further than the strict perspective
of the criminal justice system. It involves the whole system of public
institutions and touches directly the principle of separation of the
powers'.This was also emphasised in the explanatory report to the
above-mentioned recommendation of the Council of Europe.
In the current member states of the EU, considerable differences
exist in the way in which public prosecution of criminal offences is
organised.The most striking difference is between the continental
member states which, in one form or another, all know the
institution of the "public ministry" and at the other extreme,
England andWales, who do not know an institution of this kind.The
Director of Public Prosecution in the UK is in no way an equivalent
to the minist~re public in France and the other countries that have
followed the model of the Napoleonic code of criminal procedure.
In addition, even among the states that follow the French model,
considerable differences exist as to the functional and hierarchical
independence of the public prosecutor, recruitment procedures,
disciplinary supervision etc. The question as to what state power
the public prosecutor belongs (executive, judiciary, power sui
generis,...) is answered differently in various current member states.
Moreover, the powers of the public prosecutor may vary from one
current member state to another66.
The same sort of differences appear in the comparative analysis
of the systems in the candidate states.Whereas they all adopt the
French model of the minist~re public, most candidate states also have
passed through the Procuratura system during the Communist years.
Professor Manacorda observes that, like the current member
states, many candidate states are in the process of legislative
changes that mark a progressive evolution towards more balanced
and guaranteed positions.
The status of the public prosecutor in the candidate states is, as in
most of the current member states, different from the status of a
judge. Even where public prosecutors are completely independent
of political authorities, they are usually part of a hierarchy in which
"lower" public prosecutors have to comply with general
instructions or even orders from their superiors.The way of their
recruitment may, as in some current member states, allow political
appointments and they may be submitted to a disciplinary system
which may affect their independence.
64 See infra, Proposals for consideration at the Laekee summit~ p. t 32.

65 On the subiect of arrest, see further infra, Chapter 6 (Procedural rights).
66 See generatlyVan den Wyngaert, C. et at. (eds), Criminal Procedure Systems in the
European Community, Butterworth, 1993; Proceedings of the seminar on "The future
of the public prosecutor's orifice in the European Union", Leuven, 25 May 2000 in
European journal of Crime, Criminal Law and Criminaljustice 2000, 149-3t8.
ERA - Forum
/
- 3 - 2001
As to the relationship between the public prosecutor and political

authorities, the following points can be made. In most candidate
states, the public prosecutor is organically dependent upon the
Ministry of Justice, but public prosecutors are independent in the
exercise of their powers. This probably places them within the
executive state power, even though some candidate states view the
function rather as a judicial function (Slovenia). However, in most
candidate states, they do not take instructions from the
government and take their decisions freely and independently.This
situation exists in the Czech Republic, in Estonia, Poland, Romania
and Slovenia. In Bulgaria, Hungary, Lithuania and the Slovak Republic,
the public prosecutor has an even higher degree of autonomy and
enjoys total organic and functional independence. In these states,
the public prosecutor belongs neither to the executive nor to the
judicial state power.
As to the hierarchical relationships within the public prosecutorial
service, the following can be said. In the majority of the candidate
states, the public prosecutorial service is hierarchically organised.
Higher prosecutorial officers can give binding instructions to lower
prosecutorial officers.These instructions can be general in the form
of general guidelines or be more specific. Specific instructions may
take the prosecutor to prosecute or to desist from prosecution in
concrete cases (facere and non facere).Variations of this model exist
in the following candidate states: the Czech Republic, Estonia,
Hungary, Lithuania, Romania, the SIovak Republic and Slovenia. In
Bulgaria, the chief prosecutor has the power to summon a case
from an inferior prosecutor and decide it himself. With that
important exception, lower public prosecutors are free in their
decisions either to proceed or not with the prosecution of a case
and cannot receive instructions from hierarchical superiors. The
same situation seems to be applicable in Poland. Professor Georg
Brunner from Cologne University has identified a feature in the
status of the public prosecutorial staff in most eastern European
countries that he recommends for further consideration by
western European countries: in most of the states belonging to the
former category, there is a formal prohibition on membership of
political parties67.
The rules for the recruitment of public prosecutors are comparable
to those that exist in many of the current EU member states.The
Chief Prosecutors are usually appointed by the political authorities.
A distinction can be made between two categories. On the one
hand, there are the systems where this appointment is directly
decided by the political authority (the Czech Republic, Estonia,
Poland (appointment by the Minister of Justice) and Hungary
(appointment by Parliament)). On the other, there are the systems
where the appointment is made on the proposal of bodies such as
the Superior Board of Justice in Bulgaria and the Superior Council
of Magistracy in Romania. In Romania and the Slovak Republic,
candidate prosecutors must pass an entrance examination and in
Slovenia, candidates are sorted out by a commission that advises
the Minister of Justice.
Rules on disciplinary liability of public prosecutors also vary from
one candidate state to another. In the majority of the candidate
states, there are disciplinary boards, courts or committees with
jurisdiction in disciplinary matters. This approach is followed in
Bulgaria, the Czech Republic, Poland, Romania, the Slovak Republic
or Slovenia. Only in Lithuania and Hungary does a direct
participation of heads of prosecution offices exist in disciplinary
matters.

19
4.TASKS OF THE PUBLIC PROSECUTOR
In the current member states (except for England and Wales and
Ireland where the systems are quite different), public prosecutors
are usually responsible for the investigation of criminal offences, the
prosecution of such offences (i.e. the decision to file the indictment
and to bring criminal proceedings against a given person before a
court of law), the presentation of the evidence during the trial and the
(supervision of) the execution of judgements rendered by criminal
COUrtS.
As described above in relation to the investigative task of the

public prosecutor, prosecutoriai authorities in the candidate states
seem to lack investigative powers of their own and powers to
direct and monitor the police and specialised investigative bodies.
They seem to be very "reactive" in the sense that the initiative and
the direction of investigations are not within their power but within
the power of the investigators themselves. Some coercive measures
need, however, prior authorization by the public prosecutor (see
supra, para.2 of this Chapter).
In all candidate states, like in most current member states, the
public prosecutor initiates the prosecution, i.e. it is the public
prosecutor who files the indictment (drawn up, in some candidate
states, by the Investigator) and decides to bring a criminal case
before a court of law for the purposes of punishing the offence. In
the Czech Republic, Romania and the Slovak Republic, the public
prosecutor has the monopoly of prosecutions. Some candidate
states also allow private prosecution by the victim (Bulgaria,
Estonia, Hungary, Poland, Romania and Slovenia), usually only in a
limited number of cases. In Poland, certain administrative
authorities (the units of the Border guards and financial control
authorities in their respective fields of competence) are entitled to
conduct prosecutions.
Prosecutorial discretion (i.e. the decision whether or not to
prosecute individual cases ("legality principle" versus "opportunity
or expediency principle")) varies widely in the current member
states. In some states, public prosecutors can decide not to proceed
with a case, even if it would be possible to do so (principle of
"opportunity" of prosecutions). Often in these states, prosecutors
are guided in exercising this power of discretion by guidelines
emanating from the Ministry of Justice or by Chief Prosecutors. In
other states, the principle of "legality of prosecution" prevails, in
which prosecutorial authorities must proceed with a case, once
they have found sufficient evidence to do so. There are, however,
numerous exceptions to this principle. Most candidate states seem
to apply the legality principle: Bulgaria, the Czech Republic, Hungary,
Lithuania, Poland and Romania fall within this category. Estonia and
Slovenia apply a "tempered legality principle", allowing prosecutorial
discretion in practice (Estonia) or only for minor offences
(Slovenia).
Non-binding guidelines on matters of general criminal justice
policy issued by the Ministry of Justice for the public prosecutor's
office are unknown in most candidate states, with the exception of
Lithuania.
5.CONTROL
DECISIONS
COMMITTAL
OF THE DECISION TO PROSECUTE:

NOTTO
PROSECUTE AND
PROCEEDINGS
When pre-trial investigations have ended, a decision must be

made whether or not to proceed with the case by bringing it before
a trial judge.There are, broadly speaking, three alternatives: the case
67 Bruner, G., "VerfassungsrechtlicheAnpassungder Beitrittsl~nderan die EUMitgliedschaft",to be publishedin W Heusel(ed.),Schriftenreiheof the Academyof
EuropeanLaw,Vol.35,Proceedingsof ERAAnnualCongress,2000.

can be dropped altogether, a settlement out of court can be

reached, or the case can be remanded for trial.
The first alternative, dropping the case where the public
prosecutor finds that there are no reasons to proceed with it, is
available in all candidate states. In most states (the Czech Republic,
Estonia, Hungary, Romania, the Slovak Republic and Slovenia), the
public prosecutor has an unlimited power to do so, in the others
(Bulgaria, Lithuania and Poland), there is a judicial control of this
decision. In Poland, for instance, if an appeal with the superior
prosecutor is unsuccesful, the victim can appeal to the court against
a prosecutor's decision to drop the case.
The second alternative is widely used in the current member
states, where public prosecutorial authorities often have wide
powers to settle cases out of court, for example by way of a
financial settlement (transaction) or by mediation between the
parties. Statistics indicate that this form of processing cases is on
the rise in many member states, even in states, which, like Germany,
do not know prosecutorial discretion and adhere to the principle
of legality68.In this study, only the question of (financial) settlement
has been examined, not the more general question of prosecutorial
powers to settle cases out of court. Settlement exists in one out of
two candidate states in the study (see further infra, Chapter 5
(Settlement)).
The third alternative, the committal of a case for trial, needs some
clarification. In most of the current member states, the situation is
as follows.When the preliminary investigation has ended, the public
prosecutor files the indictment, which is communicated to the
defendant. In some member states, there is a (possibility for) an
intermediate procedure before this trial court, in order to assess
whether the indictment is well founded (sufficiency of the evidence,
prima facie case). This procedure is automatic in some states, and
optional (i.e. on the parties request) in others.A few of the current
member states have provided a special intermediate court for this
purpose, which is different from the trial court that finally hears the
case. France, Belgium and Italy have such courts. In these three
countries, the intermediate courts may exclude illegally obtained
evidence. In most of the current member states, however, no
intermediate courts exist.
In some states, the committal court has the possibility to exclude
illegally or irregularly obtained evidence from the dossier (purge des
nullit~s), whereas in other member states, this is a matter for the
trial court to decide. Purge des nullit~s decided by an intermediate
court before the trial starts, exists in Belgium and in France
(chambre de rinstruction), but not, for example, in the Netherlands,
where parliament deliberately chose not to allow the purge des
nullit~s at the pre-trial stage of the proceedings.
The picture for the candidate states seems to correspond to the
situation in the majority of the current member states. None of the
candidate states knows intermediate courts.This seems to indicate
that there are, in most states, no separate committal proceedings
and that the decision about the prima facie-case and possible
irregularities in the evidence-gathering is taken by the trial courts,
together with the decision on the merits of the case. In some
states, like the Czech Republic, the case can be referred back to the
public prosecutor. In Estonia, no intermediate proceeding exists but
the trial judge may in some cases call a preliminary hearing. A
comparable situation seems to exist in Hungary, Poland and the
Slovak Republic. In Slovenia, the only candidate state which knows
the French-style investigating judge, certain decisions of this judge
can be appealed before a panel of three judges, but the prosecutor's
decision whether or not to file the indictment is not subject to
judicial control.
/
2O
E R A - Forum - 3 - 2001
6. I N V E S T I G A T I N G A N D P R O S E C U T I N G CORPUS
JURIS C R I M E S U N D E R T H E CORPUS JURIS RULES:
W O U L D C A N D I D A T E STATES BE A B L E T O
" R E C E I V E " T H E CORPUS JURIS?
(i)The European public prosecutor seen from a political

perspective
The Corpus Juris-proposal grew from the findings of a group of
experts who after studying the theoretical and practical issues
concerning the penal protection of the financial interests of the
European Community, concluded that the current "horizontal
model" of international cooperation in criminal matters did not
constitute an effective and adequate protection of these interests69.
The "vertical" model they proposed instead is, of course, quite
radical. The question whether it is acceptable from a political
perspective must be distinguished from the examination of its legal
feasibility (see below).
The Corpus Juris is based on a centralised enforcement system,
revolving around the institution of a European Public Prosecutor,
which would be the central steering mechanism seeking protection
of the Community's financial interests. The European Public
Prosecutor would be responsible for the investigation and
prosecution of Corpus Juris-crimes. He would direct and oversee
investigations throughout the European territory (principle of
European territoriality, see further infra, Chapter I 0), be responsible
for prosecutions (or settlements), present the evidence before
national trial courts and oversee the execution of judgements. From
an organisational point of view, the public prosecutor would be
totally autonomous and independent of the member states and
Community institutions. His office would be structured in such a
way that "delegate European Public Prosecutors" in the member
states would take instructions from the European Public
Prosecutor and would act in the name of the office as a whole
(unity and indivisibility of the prosecutor's office).
For the purposes of the present study, the experts were asked to
reflect on the feasibility of the Corpus Juris model in the legal
systems of the candidate states, in the same way as was done by the
previous Follow Up-Study, where this reflection was conducted in
relationship to the legal systems of the current member states.
Quite predictably, the national reports for the candidate states
showed the same type of problems that emerged from the previous
Follow Up-Study. In most candidate states, as in the current
member states, the introduction of a European Public Prosecutor
would face problems of a constitutional nature. In Bulgaria, the
Czech Republic, Hungary, Lithuania, the Slovak Republic and
Slovenia, it would be incompatible with the Constitution which
would need to be revised. Nearly all reporters for these countries
mention the problem of state sovereignty as a crucial objection.The
only country where, from a political perspective, Corpus Juris does
not appear completely "unthinkable" seems to be Poland.The Polish
expert feels that nothing would prevent Poland to delegate certain
state powers to an international organisation.This seems also to be
the case for Lithuania.
As already stated, the same kind Of reactions appeared in the
previous Follow Up-Study. As Professor Manacorda observes, to
make concrete submissions on this point for the candidate states is
a very delicate and sensitive issue and therefore more a political
than a legal question.
68 Albrecht,H.-J.,"Criminalprosecution;developments,trendsandopenquestionsin the
federalrepublicof Germany",in EuropeanJournalof Chine,CnminolLaw and Criminal
Justice2000,245-256,
69 On the questionwhetherthis premiseis correct,seethe Firstevaluationexerciseon
mutual assistancein criminal matters of the Council (2001),infra, Chapter 10,
footnote91 andthe quotein the text correspondingto footnote128.
ERA - Forum - 3 - 2001
This question is not new. Some states faced the same type of
problem when preparing for the ratification of the Rome Statute
for an International Criminal Court 7~ which also presupposes the
transfer of certain prosecutorial powers to an international
institution. Some states, including France, have been prepared to
change their constitution for this purpose7'. If the same political
willingness would exist to introduce a public prosecution service
for financial crimes against the financial interests of the EU, the
constitutional problems of the kind discussed here could be
resolved. However, again, this is a political, not a legal decision.
(ii)The European Public Prosecutor seen from a legal
perspective
From a legal point of view, the question to be examined in this
study is whether a European Public Prosecutor, if the Corpus Juris
were to be introduced, could be "received" within the general
architecture of the legal systems of the candidate states, from a
purely technical perspective. In other words, how would the
European Public Prosecutor fit into the investigatorial and
prosecutorial organisation of the criminal justice systems in the
candidate states as they were described in the previous sections of
this Chapter?
The public prosecutor, under the Corpus ]uris-system, would
oversee, direct and monitor investigations. He would have an active
"steering" task. Investigators would be bound by his instructions.
Looking at the division of tasks between investigatorial and
prosecutorial officers in the candidate states under study, reception
of the CorpusJuris would be difficult because of the strict separation
between investigators and prosecutors. In most candidate states,
prosecutors do not participate in investigations, and cannot direct
or monitor investigators in the field. Reception of the Corpus Juris
would thus seem problematic in these states.
The "prosecutorial task" of the public prosecutor would be more
easy to receive.The public prosecutor, under the CorpusJuris, would
initiate prosecutions. This task would be compatible with the
manner in which the tasks of public prosecutors in the candidate
states are organised.The same can be said in respect of the other
tasks of the European Public Prosecutor: presenting the evidence at
the trial and overseeing the execution of the sentences. It seems
therefore to be possible to conclude that, as far as the tasks of
prosecution in the strict sense and of overseeing the execution of
sentences are concerned, the candidate states could receive the
Corpus Juris without too much difficulty, even though some
organisational problems would need to be resolved.
(iii) T h e judge of f r e e d o m s and coercive measures in t h e
pre-trial stage
Under the Corpus Juris, coercive measures would, during the
preliminary proceedings, be decided by a judge of freedoms, who
would be a national judge appointed by the member states to this
task. This could be a pre-trial judge or a pre-trial court in a state
where such tasks exist, or a trial court in states where warrants are
usually delivered by an ordinary judge, not by a specialised pre-trial
judge.
The Napoleonic model of the investigating judge has disappeared
in all but one candidate state in the study, Slovenia. If the CorpusJuris
were to be introduced, these states would have to appoint another
judge (other than a specialised pre-trial judge) to the function of
judge of freedoms. This "other judge" would most probably be a
trial court judge with competence to deliver warrants in the pretrial stage of the proceedings. This does not seem to be an
21

incompatibility that would make the reception of the CarpusJuris in
the candidate states more problematic than in current member
states such as the U.K., Ireland or in the Nordic member states,
who do not know pre-trial judges either. It would be a simple
matter of implementing the Corpus Juris' renvoi to national legal
systems on this point.
(iv) T h e judge of freedoms as an i n t e r m e d i a t e c o u r t
Under the CorpusJuris, the judge of freedoms would also perform
the task of intermediate court: it would be the judge of freedoms
who would decide whether there is a prima facie case and commit
the case for trial. Unlike in the first version of the Corpus Juris, he
would have no powers to exclude irregularly obtained evidence.
No candidate state in the study knows intermediate courts.
Unlike in the case of the function described in the previous
paragraph (judge of freedoms as a "warrant judge"), it seems to be
difficult to attribute a function, which does not exist in the national
criminal justice systems to an existing judge, or court of law that
normally does not perform this function. It would seem that the
reception of the Corpus Juris would be more difficult on this point
than on the previous one because there may be no equivalent
national court for the purposes of the renvoi by the CorpusJuris.This
problem also exists in the current member states.
(i) National investigation and prosecution
The acquis does not tell states how they should organise their
investigatorial and prosecutorial systems.There are no yardsticks by
which to measure and assess the legal systems of the candidate
states. However, to the extent that civil rights and privacy rights of
defendants and third persons can be affected by acts performed by
persons wielding state authority in administrative or criminal
proceedings, a number of minimum principles, based on general
human rights rules and further developed in the above mentioned
Recommendation of the Council of Ministers of the Council of Europe

should serve as guidelines. Professor Vervaele points to one of the
essential problems that are revealed by this study: the fact that
coercive measures do not, in all candidate states, need the
authorisation of a judge.This problem is further addressed in other
parts of the present study, particularly in Chapter 6 (procedural
rights) and Recommendation 13 and in Chapter l0 (international
cooperation).
In the previous Chapters of this study, the reception of the Corpus
Juris (on the subjects of offences (Chapter I), rules on criminal
responsibility (Chapter 2) and sanctions (Chapter 3)) did not seem
to be problematic in the candidate states: legislative changes may be
required, but there were no major political or constitutional
obstacles.
The same cannot be said in conclusion of the present Chapter.
The reception of the Corpus Juris would be quite problematic in
most candidate states for political reasons, linked to political choices
to be made under constitutional law and the question of national
sovereignty.
From a strictly legal point of view, the picture looks different.
Most candidate states would be able to receive the prosecutorial
system of the Corpus Juris, even though several details of the
procedure would need to be addressed. The report of Professor
70 RomeStatuteof the Internationa~CriminalCourt, Rome,17July 1998.U.N.Doc.
A/Confi 183/9,InternationalLegalMaterials1998,999,
71 ConseilConstitutionnel5 January1999,N~ 98-408DC, Revuedu DroitPublic1999,
p.471;Loi constitutionellen~99-568du 8 juillet 1999,JournalOff~ael9 juillet 1999,
p. 10175.

Manacorda makes several concrete submissions on this point.

Another reception problem, though not of a constitutional nature,
would be the practical difficulty to "fit" the CorpusJuris investigation
structure into the investigation and prosecution structures in the
candidate states.
(ii) International investigation and prosecution

The Corpus Juris system is not meant to be a substitute for
national investigatorial and prosecutorial systems. It offers an
alternative solution for the problems that currently exist as a result
from the "horizontal" way in which international cooperation is
organised. Looking at the guidelines of the Council of Europe on
the subject of the relationships between prosecutorial and
investigative services, this problem deserves to be further
examined, not only for the candidate states, but also with respect
to the relationship between prosecutorial services and European
investigation agencies (Europol, OLAF) in the current member
states. In the Corpus Juris, the European Public Prosecutor would
have powers of supervision over European investigation officers
(article 20(2)). The drafters took this for granted and hardly
developed this point in the text.
Generally speaking, public prosecutor's services should be
organized in such a way that investigators can be supervised in
accordance with the minimum standard laid down by w 21 of the
Council of Europe Recommendation 2000(19) on the role of the
public prosecutor in the criminal justice system.We believe that the
task of supervising the police for the crimes that are the subject of
the present study (see Chapter I) should be exercised by a
European Public Prosecutor, rather than by Eurojust. Judicial
integration will be a natural and necessary complement of further
economic integration. See further Proposal II in the concluding
chapter of this study7z.
Further thought should be given to the minimum requirements
for this integration. Integration in the field of justice and home
affairs should not be limited to integration between investigative
authorities only. Proposals III and IV recommend minimum
requirements for judicial integration in Europe. Mere coordination
between investigatorial and prosecutorial efforts of member states
is not sufficient to protect the financial interests of the European
Community. European guidelines, particularly w 21 of the Council of
Europe Recommendation 2000(19) on the supervision of police
services by public prosecutorial services, should apply to
transborder police activities of national police services and to
activities of European investigative bodies such as Europol and
OLAE Eurojust has no powers of supervision, under neither the
First (OLAF) nor the Third Pillar (Europol) instruments and is not
the appropriate organ for the exercise of these powers, as it is a
mere coordination unit. A vertical system such as the Corpus Juris,
with a European Public Prosecutor overseeing investigations (art.
20 (2) a Corpus Juris) is more appropriate for this supervision task
and has the advantage of transparency. The European Public
Prosecutor should be given the powers to supervise and monitor
national and European police services while they investigate Corpus
Juris offences.
In their advisory opinion nr. 5/99, J.N. Da Cunha Rodriguez,
Raymond Kendall and Edmondo Bruti Liberati, members of the
OLAF Surveillance Committee, recommended the establishment of
a European Public Prosecutor who would exercise a "judiciary"
control over the activities of OLAEThis, in the eyes of the experts,
would enhance the legitimacy of OLAF and would guarantee that
its activities respect fundamental human rights and liberties. The
/
22
E R A - F o r u m - 3 - 2001
European Public Prosecutor should be separate from OLAE It

would not be sufficient for OLAF to create, within the service, a
unit composed of magistratesTLWe share this view.We believe that,
the functions of "investigation" and "prosecution" should be
separated, and that prosecutorial authorities should monitor
investigative authorities.
The European Council of Laeken (December 2001) should, in our
view, re-examine the conclusions of the Commission of
independent experts which proposed the creation of a European
Public ProsecutorTL It should also reconsider the recommendation
of the Committee Dehaene, Simon and von Weizs~cker concerning
the implications of enlargement (18 October 1999), which called
for further consideration of this proposal 7S.See infra, Proposal II of
this final reportTL
(iii) Closing preliminary proceedings in transnationai cases

Even though all but one candidate state in the study lack a French
style-investigating judge, the reception of the judge of freedoms,
were the CorpusJuris to be introduced in the candidate states, might
be another obstacle.The obstacle would not exist for the judge of
freedoms in his capacity of a "warrant judge" (i.e. a judge who
delivers coercive warrants in the pre-trial stage of the proceedings),
but for the judge of freedoms in his capacity as an "intermediate
court" deciding about the committal of a case once investigations
have come to an end. The judge of freedoms in his capacity as a
"warrant judge" could be easily received, as this function exists in
all candidate states even though the holder of the function is, in all
states but Slovenia, an ordinary trial judge. It would be more difficult
for the judge of freedoms in his capacity as an intermediate court,
since this is a function that does not exist in many candidate states.
In transnational fraud cases, the acquis-rules on (extra)-territorial
jurisdiction enhance the possibility of cases where two or more
states are competent to try the same person for the same offence
(concurrent jurisdiction).This is not only inefficient, but also creates
the risk for the same person to be tried in different states for
different parts of the same offence. Where such concurrent
jurisdiction exists, prosecutions should be concentrated in one
state only.This problem is further examined in Chapter 10, but also
concerns the present Chapter, which should draw conclusions
concerning the question how transnational investigations should be
closed and who should make (or supervise) the choice of the
competent trial court. Chapter I 0 further examines the problem of
the choice of the forum.We suggest that this decision should be
made by a prosecutorial authority (Eurojust or the European Public
Prosecutor if the Corpus Juris were to be applicable) subject to
judicial supervision, in the form of a fiat or a nihil obstat.This, in our
view, should be done by a European Preliminary Chamber, which
would oversee the choice of the forum at the end of investigations
and could also have other functions, such as the committal for trial
(recommendation 10) and the validation of settlements out of
court for crimes against the financial interests of the European
Community (recommendation 12).
72 Seeinfra,Proposalsfor considerationat the Laekensummit,p. 132,
73 Avis 5/99 du Comite de surveillance,~ I'intentionde la commissiondu contr61e
budgettaire du parlementeuropeensur les consequencesde ta mise en oeuvre
@ventuelledu Carpus]uris, t7 d~cembre t999, Comit@de Surveillance,Rapport
d'activit6sjuillet 1999-juittet2000, Annexe3.
74 European Parliament,Committee of IndependentExperts, Second Report on
Reform of the Commission.Analysisof current practiceand proposalsfor tackling
mismanagement,irregularitiesand fraud, 10SeptemberI999,
75 Para, 2.2,6 of the Report, European Commission,Secretariat General, SEC
(I 999)2000.
76 Infra,Proposalsfor considerationat the Laekensummit,p. 132,
ERA - Forum
- 3 - 2001
In concluding Chapter 4, we formulate two recommendations

that are listed immediately below. As this chapter concerns some
more general questions that relate to other parts of this study, we
also submit three proposals for further consideration at the Laeken
summit of December 2001.These proposals (Proposals II, III and IV)
shall be further developed in the concluding chapter at the end of
this study and are listed at the end of the report '7.
Recommendation
Coercive measures during the pre-trial stage of the proceedings

should be in conformity with the European Convention on Human
Rights. In principle, a judge should authorize coercive measures that
restrict the right to privacy. (See also recommendation 13).
Recommendation
I0
Where more than one state has jurisdiction over offences that
are the subject of this study (Chapter I), the committal of the case
for trial should be decided on a European level, for example by a
European Preliminary Chamber (see also Proposal III and
Recommendation 12).
CHAPTER
5 - SETTLEMENT
a. Introduction
This part of the study deals with "settlement" as a means to
process offences against the financial interests of the European
Community. There is no acquis communautaire on the subject of
settlement. Because of the lack of harmonisation, the requirements
of the acquis seem to be rather straightforward and relate only to
the obligation to recover in full, as Dr. White very pertinently
observes in the introduction to the questionnaire, which formed
the basis for the study.
The Corpus Juris would allow for settlement, under a number of
conditions, which are spelled out in art. 22. The Corpus Juris
considers settlement as a way to terminate prosecution, which is
decided by the European Public Prosecutor under the control of
the judge of freedoms. Settlement would be excluded for serious
fraud offences (where the misappropriated amount exceeds 50.000
or where aggravating circumstances exist): It is subject to a number
of conditions: the defendant must admit guilt; the authorities must
have sufficient evidence of guilt to justify referral to trial; the
decision to settle must be made publicly and the agreement on
settlement should be in accordance with the principle of
proportionality TM.
In the questionnaire, settlement is defined as "an agreement
between the competent authority of a member state and a legal or
natural person on an amount to be repaid, such settlement
occurring instead of a pecuniary sanction or other outcome
determined by the court". Dr. White further observes that "this
practice is controversial, because it can mean, for example that
accused persons prefer to settle large amounts in order to avoid
court publicity. It can also mean that amounts are not recovered in
full by authorities using their discretion to decrease amounts, in
ways that can lack transparency. These types of settlements can
work to the disadvantage of the taxpayer. In some member states
settlements are perfectly legitimate and recognised in law, whilst in
others this practice remains on the margins of legality". Dr.
Xanthaki notes that settlement is neither commonly defined nor
accepted and is even not currently allowed in criminal proceedings
at all in several states (Germany, Greece, Italy, Luxemburg, Spain and
Sweden).

23
Settlement being not part of the acquis yet, the candidate states
have no obligation to introduce it in order to achieve compliance.
However, the EU-expert observes a tendency within the current
EU member states to strengthen harmonisation in the field of
criminal law. She therefore firmly believes that a future EU-provision
on settlement, whatever form it might take, seems inescapable.
For the purposes of this Chapter, given the fact that there is no
acquis on the subject of settlement, the main question is whether
candidate states would be able to receive art. 22 Corpus Juris.The
EU-expert believes that this analysis is very important: exploring
the manner in which art. 22 may be received by the laws of the
candidate states may indeed serve as a tool of exploration for the
most suitable and realistic route for the currently doubtful
acceptance of settlement by the laws of the EU member states.
Like the current member states of the EU, candidate states have
no common approach to the question of settlement. On the one
side, there are the candidate states that do not know settlement at
all. In these states (Bulgaria, Hungary, Romania and the Slovak
Republic) settlement is totally alien to the legal system and there is
no way, in which such a practice could be introduced. On the other
side fall the candidate states that recognize settlement (the Czech
Republic, Lithuania, Poland and Slovenia) or that are preparing
legislation to introduce it in the future (Estonia).
In some of the countries that do not accept settlement, other
legal mechanisms may be identified that achieve comparable results.
For example, Hungary, Bulgaria and the Slovak Republic recognise,
under varying conditions, active repentance, allowing the offender
who confesses to the authorities before the crime becomes known
and who makes good all the damage caused by it to escape
punishment under certain conditions.
(i) Conditions
The expert identifies a number of conditions applicable to
settlement under the laws of the candidate states that allow for it.
First, there is the condition of the full payment of the money owed
(Estonia, Lithuania, Poland), which is stronger than the requirement
in the Corpus Juris, where this is not an explicit condition.The EU
expert believes that this condition deserves further consideration,
and proposes that the CorpusJuris should introduce it as well. Doing
so would improve the chances of reception, not only by those
candidate states that already know settlement in their domestic
legal systems, but also in those which, as yet, do not apply it. It may
even improve the changes of reception of the Corpus Juris in the
current EU member states that do not recognise settlement.
A second condition for settlement is that it is possible only for
crimes whose maximum-penalty is below a threshold of 5 years
(Czech Republic, Estonia, Poland) or 3 years (Slovenia). Article 22
Corpus Juris fails to introduce a qualifier as to the seriousness of the
crimes for which settlement is applicable (even though it excludes
serious fraud and repeated offences from its application). The
77 Infra, Proposals for consideration at the Laeken summit, p. 132.
78 Art, 22 Corpus Juris reads as follows: "For the same offences, the prosecution is
extinguished on the death of the defendant (or if it concerns a group, the dissolution
of the group), or by expiry of the limitation period or by settlement: [...] (b)
settlement is ruled out in the case of repeated offences,where arms or forgery were
used, or if the sum involved is 50,000 Euros or more, In other cases, it may be
proposed by the nafJonal authorities to the EPP, both for cases under national
jurisdiction (cf~Article 19(4a)), and cases under European iurisdiction, according to
the following conditions: the defendant freely admits his guilt, the authorities have
sufficient evidence of guilt to justify committal to trial, the decision to come to a
settlement is made publicly,and the agreement concluded respects the principle of
proportionality, In the case of refusal,the EPP must, if there are grounds, call in the
case.The settlement agreement is subject to the control of the judge of freedoms."

EU-expert believes that it would be an improvement of the Corpus

Juris if it were to set a threshold for settlement of the kind that has
been provided by candidate states. Again, this may improve the
chances of reception of the Corpus Juris, not only in the candidate
states, but also in the current member states of the EU.
A further requirement is that the defendant agrees with the
settlement. Some states require an admission of guilt by the accused
(Estonia, Lithuania and Poland). This admission of guilt is also a
requirement in the Corpus Juris.The EU-expert wonders whether
this requirement, which amounts to a confession, is not too severe,
given the fact that settlement is basically a civil contractual
agreement. Moreover, it is likely to undermine the legal basis and
the validity and purpose of settlement especially in countries that
still favour the principle of legality of prosecutions (supra, Chapter
5). An even stronger requirement, applicable in two candidate
states, is the lack of any doubt that the offender committed the
crime for which settlement is sought (Poland, Slovenia). This goes
further than the Corpus Juris, which only requires the authorities to
have sufficient evidence of guilt to justify committal to trial.
An important requirement is the requirement of proportionality to
the seriousness of the crime. This requirement exists in the Czech
Republic, Estonia and Slovenia, and implicitly in Lithuania. The
principle of proportionality is a general principle of European
Community law. The EU expert observes that in any case, the
principle of proportionality, as contained in the CorpusJuris (art_ 22),
would not be an obstacle to reception of the CorpusJuris. It would
probably be considered as a safeguard, rather than a problem for
legal orders that follow the principle of legality of prosecutions.
Overall, the substantive requirements for settlement in the
candidate states that accept it in their legal systems seem to
converge with the requirements.of the CorpusJuris, which seems to
indicate that the Corpus Juris could be received by these countries
without too much problems. Hence, the Czech Republic, Estonia,
Lithuania, Poland and Slovenia could implement the current version
of art. 22 CorpusJuris.Yet the EU expert believes that her proposed
amendments to art. 22 Corpus Juris would make it more
accommodating to the legal systems of the candidate states which
already allow for settlement.
(ii) Procedural requirements
The candidate states that know settlement in their national legal
systems have introduced procedural rules concerning the initiative
to settlement, the decision itself, verification and the rights of the
victim.
In all candidate states that apply settlement, the initiative is taken
by the public prosecutor. There are differences as to who decides
about the settlement. In Estonia, Lithuania and Slovenia, the decision
is taken by the public prosecutor (with subsequent validation by a
judge in Estonia and Lithuania), in the Czech Republic and Poland,
the settlement itself is decided by a court of law. In all states that
accept settlement, a public hearing is part of the settlement
proceedings.
The EU expert feels that the conditions of publicity and
validation or decision by a judge may facilitate reception of
settlement in those countries that do not yet accept it. It may
overcome the objections of those who oppose the very idea of
settlement because it is contrary to the principle of legality.
The process of settlement under art. 22 seems to be
unproblematic for countries that provide settlement in their
domestic laws already. One problem may be the validation by the
judge of freedoms, which does not exist in the candidate states
(except Slovenia, which knows the institution of an investigating
/
24
ERA - Forum - 3 - 2001
judge).And of course, settlement decisions under art. 22 CorpusJuris

would emanate from the European public prosecutor, not from
national public prosecutors, which raises the more general problem
of the compatibility of this institution with the legal systems of the
candidate states in examination, a problem that is discussed
elsewhere in this report (supra, Chapter 5 (Investigation and
Prosecution) and infro, chapter 10 (International Cooperation)).
Apart from this, the reception of the procedural conditions for
settlement as they were spelled out in the Corpus Juris does not
seem to be problematic.
(iii) Settlement relating to Community funds
The question as to whether the provisions on settlement in the
candidate states in the study do, currently, or can, in the future, be
used for disputes related to community funds is answered as
follows by the expert. "The group of countries which does not
recognise settlement cannot, under current legislation, allow
settlement for Community funds. This group includes Bulgaria,
Hungary, Romania and the Slovak Republic.The group of countries
which currently allows settlement is unanimous in its conviction
that Community funds could be covered by existing legislation,
provided the law is interpreted widely. This is the situation in the
Czech Republic, Estonia, Poland and Slovenia. In Lithuania,
settlement for Community funds would be possible, but only if the
funds in question were paid by a national authority rather than a
Community authority".
Another question is whether settlements regarding EUofunds can
be vetoed by the European Commission. The question does not
arise under the acquis as the acquis does not recognise settlement
in criminal trials yet. It does, however, arise under the Corpus Juris.
Under art. 2 I, any decision concerning the termination of criminal
prosecution is notified to the European Commission. Dr. Xanthaki
observes that it is not clear what this actually means, i.e. whether
upon notification the Commission would have the power to act,
whether their role is purely advisory or whether notification is
made only for the purposes of allowing an administrative update of
their files.This, she suggests, is another point on which the Corpus
Juris could be clarified in the future.
In some candidate states, victims have the right to veto
settlements. To the extent that the European Commission (as
representative of the EC) could be considered as a "victim" of
certain crimes that are the subject of this study, the Commission
could probably veto settlements.This appears to be the case in the
Czech Republic (see also infra, Chapter 6 (Procedural Rights)).
Legislation in the candidate states as it stands now would, before
accession, not allow notification of settlements to the Commission.
After accession, such notification would be possible in all the
candidate states that accept settlement. This, of course, would
require procedures of consultation of the Commission, and perhaps
OLAE Only one candidate state seems to be in the process of even
considering a manner in which OLAF officials could participate in
the settlement procedure, the EU-expert observes. She proposes
that future drafts of art. 22 Corpus Juris should take this problem
into account and provide a role for OLAF in the case of settlement.
The expert believes that a possible improvement would be the
validation of settlement agreements by a European Court,
specifically by the Court of First Instance of the EC.
As was said in the introduction to this Chapter, settlement not
being part of the acquis yet, the candidate states have no obligation
to introduce it in order to achieve compliance. As appears from
ERA
- Forum - 3 - 2001
Chapter 8 on recovery, settlement is an important means to

recover misappropriated EU funds, This seems to warrant the
conclusion that candidate states should be encouraged to ensure
that settlement is possible under their national legal systems.
Another important element that Dr. Xanthaki emphasised is the
lack of clarity about the role of the European Commission, and
more particularly OLAF, in the settlement process. Corpus Juris
should say more on this point than it does currently in art.20
(decisions not to prosecute must be "communicated" to the
Commission). The expert's suggestion of a possible validation of
settlement agreements by a European Court deserves further
consideration.
The comparative study reveals that those candidate states in the
study which already have rules on settlement, provide more
detailed rules than the CorpusJuris.The expert rightly observes that
the acquis on settlement should be further developed and that
proposing amendments to the Corpus on this point would increase
its chances of being received in the systems of the candidate states
under study. One condition applicable to settlement that is required
in all the candidate states that know settlement but not in the
Corpus Juris is full payment of the money owed. Quite obviously,
settlements should always require the approval of the defendant,
but requiring also an admission of guilt as a requirement for
settlement, as in some candidate states under study and also in the
Corpus Juris, is a factor that may hinder reception in those states
which reject settlement because it conflicts with the principle of
legality of prosecutions (which exists in most candidate states
under study).
In concluding Chapter 5, the following recommendations are
made.
Recommendation
II
Candidate states that have not yet introduced settlement as a

means of recovering misappropriated EC-funds should do so
before accession. The Commission, through OLAF, should at least
be consulted in the settlement process.
Recommendation

25
12
The idea of further elaborating the Corpus-Juris.article on

settlement (art. 22(2)b) should be considered. For example a
provision could be added to the effect that full repayment of the
misappropriated EC funds should be a condition for settlement.
Concomitantly, the suggestion of a possible validation of
examination (see also Proposal III and Recommendation 10).
The European Union is not, as such, a party to the European

Convention on Human Rights and is therefore not directly subject
to the jurisdiction of the Human Rights Court in Strasbourg.
However, art. 6(2) of the TEU explicitly states that "The Union shall
respect fundamental rights, as guaranteed by the European
Convention for the Protection of Fundamental Rights and
Freedoms signed in Rome in 4 November 1950 and as they result
from the constitutional traditions common to member states, as
general principle of Community law".Actions of the institutions are
reviewable for their compatibility with fundamental rights before
the EU Court of Justice under art. 46(d) of the Treaty on European
Union.
In 2000, the Charter of Fundamental Rights of the European
Union was adopted. It has not entered into force yet and its legal
status is still unclear.According to some commentators, it may well
initiate the development of a European Constitution, which would
be highly relevant for the Corpus Juris-institution of the European
Public Prosecutor. ChapterVI of the Charter is devoted to "Justice"
and contains provisions that are relevant for this chapter of the
study, that is the right to an effective remedy and to a fair trial (art.
47) and the presumption of innocence (art. 48).
The Corpus Juris provides an article on the rights of the accused.
It does not repeat the relevant provisions of the European
Convention on Human Rights but incorporates them by saying that,
in any proceedings brought for an offence set out in art. I-8 Corpus
Juris, the accused enjoys the rights of the defence guaranteed by the
European Convention on Human Rights and the International
Covenant on Civil and Political Rights.The original version of this
article specifically referred to the right to a fair trial in both these
instruments (art. 6 and 14 respectively).This explicit reference was
deleted in the CorpusJuris 2000, after criticisms that it was indeed
too narrow, given the importance of other rights such as the right
to personal freedom and the right to privacy, which are also highly
relevant in criminal proceedings ~. However, the Corpus Juris goes
beyond a mere renvoi to the minimum protection guaranteed by the
international human rights instruments by clarifying a number of
points that are not explicit in the ECHR and in the Covenant and
that are specially relevant for the financial-economic crimes that are
listed in the CorpusJuris. Firstly, the CorpusJuris defines the moment
as from which the protection starts to "run". Furthermore, it
develops the defendant's right to silence and the right to be
informed of the charges against him. In view of the novelty of the
European arrest warrant, proposed in art. 25ter CorpusJuris, more
detailed provisions on the right to individual liberty have been
incorporated.
CHAPTER
6 - PROCEDURAL
RIGHTS
a. Introduction
This Chapter examines the procedural rights in the candidate

states. It looks at procedural rights in the candidate states in
relation to the offences that are the subject of this study, i.e. the
offences enumerated in Chapter I.
The acquis on procedural rights is quite large: there is, of course,
the European Convention on Fundamental Rights and Freedoms
(ECHR) to which all EU member states are parties and which has
considerably influenced the development of modem criminal
procedure in these states. The European Court of Human Rights
has greatly contributed to this development in its rich
jurisprudence concerning arts. 5, 6 and 8 of the ECHR'9.
I. R I G H T S
OFTHE
DEFENCE
All candidate states in the study are parties to the European

Convention on Human Rights. In many states the Convention has
79
For the purposes of brevity we do not, in this repo~ refer to the corresponding
articlesin the InternationalCovenanton Civetand PoliticalRights.

80 The Engtishtranslationof Cerpusjuris2000has,unfortunately,omittedto makethis
correction,whichmet with unanimousapprovalin Florence.Thetext shouldreadas
follows'.Article 29:"1.A personmaynot be heardas a witnessbut mustbe treated
as accusedfrom the point when any step is taken establishing,denouncingor
revealingthe existenceof clearandconsistentevidenceof guiltand.atthe latest,from
the firstquestioningby an authorityawareof the existenceof suchevidence.
2, in any proceedingsbroughtfor an offenceas set out above(Articles I to 8).the
accusedenjoysthe rightsof the defenceguaranteedby Article 6 of the European
Conventionon HumanRightsandArticle 10of the UN InternationalCovenanton
Civil and PoliticalRights.Beforeany questioningtakesplacethe accusedmust be
informedof his rightto silence.
3. Fromthe time of his first questioning,the accusedhas the right to knowthe
contentof the chargesagainsthim."

E R A - F o r u m - 3 - 2001
26
been in force since nearly a decade.The years of entry into force

are as follows: Bulgaria and Hungary (1992), the Czech Republic, the
Slovak Republic and Poland (1993), Romania and SIovenia (1994),
Lithuania (1995) and Estonia (I 996). Many candidate states have
given constitutional status to defence rights (the Czech Republic,
Hungary, Lithuania, Poland, the Slovak Republic, and Slovenia),
others have laid down defence rights in their codes of criminal
procedure (Bulgaria, Estonia and Romania).
Maitre Favreau concludes from his analysis of the national
reports for the candidate states in the study that the principle of
equality of arms is, in various forms and with varying degrees of
detail, recognised in all the states concerned.
There is ample case law on both articles in the case taw of the
European Court of Human Rights. Under art. 29 w CorpusJuris, the
accused has the right to know the content of the charges against
him as from the moment of his first questioning.
Maitre Favreau observes that all countries under study seem
actually, from a formal point of view, to comply with the general
requirement of informing the defendant about the nature and cause
of the accusation. He doubts, however, whether all candidate states
in the study fully comply with the requirement of giving detailed
information, which is clearly defined in the jurisprudence of the
European Court of Human Rights. Subject to this qualification,
candidate states would be able to receive art. 29 w 3 Corpus Juris.
(i) Starting point
(iii) Right to silence
Article 6 ECHR does not state the moment from which the
defence rights listed in it start to "run". Quite obviously, defendants
should have all the fair trial rights listed in art. 6 when the trial
starts, but the question is whether these rights also need to be
protected in the preliminary stage, during the preliminary
investigations before the trial The answer to this question varies
with the right under consideration. For example, the right to be
assisted by a lawyer may exist as from the outset, whereas the right
to a public hearing may only be available at the trial, not beforehand.
There is ample case law of the Human Rights Court in Strasbourg
on this point, and it was impossible to examine the legal systems of
the candidate states in light of this case law within the time available
for this study.
The analysis is therefore limited to assessing compatibility with
the "starting point" of the right to be treated as an accused under
the Corpus Juris for the crimes that are the subject of this study,
which is a novelty of the CorpusJuris (art. 29). Under the CorpusJuris,
a person has the right to be treated as an accused, not as a witness,
"from the point when any step is taken establishing, denouncing or
revealing the existence of clear and consistent evidence of guilt and,
at the latest, from the first questioning by an authority aware of the
existence of such evidence". Before any questioning, the accused
must be informed of his right to remain silent. The aim of this
provision, as observed by the expert, is to avoid a defendant being
treated as a witness.
In most candidate states, this right starts to run as from the
moment of formal accusation, usually by the "Investigator" (see
supra, Chapter 4), which will often be on the occasion of an arrest.
The EU-expert concludes that in most candidate states, the system
is compatible with art. 29 CorpusJuris on this point. Only the Slovak
Republic and Slovenia, where the police is not under a duty to
inform the suspect of his rights before interrogation, would have
difficulty receiving art. 29 CorpusJuris on this point.
Another right that is important in the early stages of the

"chronology" of defence rights is the right to silence, which in part
coincides with the right not to be compelled to contribute to one's
own trial and conviction (See also infra, Chapter 7 (Evidence)).This
right is not explicitly formulated in art. 6 ECHR but has been clearly
recognised in the case-law of the European Court of Human Rights
and the European Court of Justice and is therefore clearly a part of
the acquis.This case law is relatively recent, and many questions still
need further clarification, which will probably emerge from future
decisions of the Court.The right to silence is also laid down in art.
29 Corpus Juris, which provides that "before any questioning takes
place the accused must be informed of his right to silence".
The great majority of candidate states recognise the right to
silence. Estonia and Lithuania recognise it in the form of the right
to chose to give testimony or other evidence or to remain silent.
Only Romania does not seem to recognise the right to remain
silent. MaTtre Favreau feels that it is difficult to proceed to a further
assessment of the legislation of the candidate states on this point
because the right to silence, as it appears from European
jurisprudence, is not absolute (see also infra, Chapter 7 (Evidence)).
(ii) Right to information

One of the first rights in the chronology of rights to be asserted
in a criminal proceeding is the right to information. In the acquis, there
is a difference between the right to information of an arrested
person and the right to information of a defendant in criminal
proceedings.Article 5 w ECHR grants to everyone who is arrested
the right to be informed promptly, in a language which he
understands, of the reasons for his arrest and of any charge against
him. Article 6 w (a) guarantees that everyone charged with a
criminal offence has the right to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him.This right exists regardless of the question
whether or not the defendant has been deprived of his liberty.
2. R I G H T T O I N D I V I D U A L
LIBERTY
Of alt coercive measures that can be taken in the course of a

criminal investigation, depriving suspects of their liberty is probably
the most crucial one. This probably explains why international
human rights instruments address this point in great detail and why
the provisions in the Corpus Juris, where arrests could be made on
the request of the European Public Prosecutor (the European
arrest warrant in art. 25 ter) are the most sensitive and
controversial ones.
The acquis on the subject is laid down in art. 5 of the European
Convention on Human Rights, which protects the individual against
arbitrary arrest (i.e. arrest in other cases than those listed in the
Convention and not in accordance with a procedure prescribed by
law - art. 5 wI ECHR) and substantiates this with further procedural
rights including the right to information (art. 5 w 2, see supra), the
right to "be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial" (art. 5 w
and "to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the
detention is not lawfur'(art. 5 w
(i) Police arrest pending delivery of arrest warrant

The acquis on the duration of police arrest is as follows: persons
who have been deprived of their liberty must be brought promptly
E R A - F o r u m - 3 - 2001
before a court of law.Article 5 w does not set a limit, but there is

ample case law of the European Court on this point.The CorpusJuris
goes further than the acquis in requiring that, in principle, there
should be a prior authorization by a judge of freedoms before a
person can be arrested, but goes on by saying that, in case of
urgency, an a-posteriori control by this judge is admissible if it occurs
within 24 hours.
Many current EU states set formal limits on the duration of
police detention, often in legal texts which have constitutional
status. The same situation exists in the candidate states. In all
candidate states, as in the current member states, the police (or in
states where the "Investigator" still exists, the Investigator) has the
power to arrest suspects during a certain period of time (24 hours
in Bulgaria, 48 hours in the Czech Republic, 24 hours (extendable
to 72) in Hungary, 48 hours in Lithuania, 48 hours in Poland, 24
hours in Romania, 48 hours in the Slovak Republic and 48 hours in
Slovenia). Once that period has elapsed, the further detention of
the person must be decided by a judge. In Bulgaria and Romania,
police arrests that last longer than 24 and 48 hours respectively can
be authorised by the public prosecutor, but if the period of arrest
exceeds three days (72 hours), a judicial warrant is required.
It is difficult to assess compliance with the acquis of art. 5 w
(promptness) because the question whether a person has been
brought "promptly" before a judge is always assessed on the basis
of the circumstances. Reception of the CorpusJuris would, however,
require legislation to the effect that the warrant should, in principle,
be issued prior to the arrest and that only in urgent cases could it
be delivered within a time limit of maximum 24 hours. Most
candidate states would probably have to adopt legislation on this
point (as would, in fact, many current member states).
(ii) Arrest warrants

In all but one candidate state in the study, the judicial arrest
warrant is delivered by a court of law that is not a pre-trial court.
Slovenia is indeed the only state in the study that has an
investigation judge of the kind that used to exist in many of the
current member states of the EU (supra, Chapter 4 (Investigation
and Prosecution)).
Article 5 w ECHR, the acquis-provision to make the assessment,
does not require arrest warrants to be delivered by specialised pretrial judges, so the systems as they exist in the candidate states
seem to be compatible with this article because they all have "a
judge or other officer authorised by law to exercise judicial power"
who decides about pre-trial detention after the initial period of
police arrest. Consequently, they all comply with the acquis on this
point.
The arrest warrant in the Corpus Juris, innovative as it may seem
because of the fact that it would be decided on the initiative of the
European Public Prosecutor and be enforceable throughout the EU,
would be in conformity with the above-described acquis as far as
defence rights of the arrested person are concerneds'. The arrest
warrant would be delivered by a judge of freedoms (who would be
a national judge, to be appointed by the member states) and any
appeals or confirmations of the arrest would be decided by national
courts. The "judge or other officer authorised by law to exercise
judicial power" in art. 5 w would be the national judge of freedoms
(supra, Chapter 4) and the "proceedings by which the lawfulness of
[..] detention shall be decided" in art. 5 w would also depend on
national law, not on the Corpus Juris. Legal systems in candidate
states that comply with the requirements of art. 5 w and 4 ECHR
would therefore be capable of receiving the Corpus Juris (leaving

o f the EU in the Candidate States
27
aside the political aspects of the European arrest warrant which are
discussed elsewhere) because the Corpus Juris proceeds, on this
point, by means of a renvoi to national criminal justice systems.
This Chapter looks at the European arrest warrant only from this
perspective (rights of the defence), the other questions are
discussed in Chapters 4 and 10.Would candidate states be able to
receive the Corpus Juris, given the fact that only Slovenia knows an
investigating judge? In addition, no candidate state in the study
knows pre-trial courts of the type that exist in some of the current
member states like the chambre d'accusatJon in Belgium and the
chambre de rinstruction in France. This means that there are no
specialised pre-trial courts to which the tasks of judge of freedoms
could be attributed.This, however, is not necessarily an objection to
the reception of the CorpusJuris in the candidate states. It would be
up to each state to appoint a judge that would perform the tasks of
"judge of freedoms" as described in the CorpusJuris (i.e. a judge who
authorises coercive measures such as pre-trial detention and home
searches). Some of the current member states are in exactly the
same position: neither the Scandinavian states nor the United
Kingdom or Ireland have "judges of liberties" exercising such
functions within their national criminal justice systems.Were they
to receive the Corpus Juris, they would probably appoint ordinary
trial court judges to the task because it is these judges who, in their
systems, deliver warrants of arrest and of search and seizure (supra,
Chapter 4).
(iii) Length of pre-trial detention

Under the acquis, the duration of pre-trial detention must be
"reasonable" (art. 5 w
European Convention does not set a
formal limit, but there is ample case law of the European Court of
Human Rights determining what is to be understood by the notion
of reasonable time. In the CorpusJuris, there is a formal time limit of
6 months, which can be extended with 3 months.
Most of the candidate states report maximum duration periods
for pre-trial detention: Bulgaria (22 months), the Czech Republic (4
years), Estonia (I year), Hungary (I year, unless there is a special
order from the Supreme Court), Poland (3 months, that can be
extended to 2 years with a special permission of the Court of
Appeal), the Slovak Republic (2, 3 or 5 years depending on the
seriousness of the crime) and Slovenia (6 months).
If the CorpusJuris were to be introduced, the formal time limit of
6 months would be applicable. The reception of this provision in
candidate states would probably be as difficult as in some of the
current member states (such as for example Belgium), where long
pre-trial detentions exist in practice.
(iv) Judicial
c o n t r o l o l r pre-trial
detention
It is not sufficient for the arrest warrant to have been delivered

by a judge, there should also be a judicial control of the further
detention of the arrested person once he has been imprisoned by
virtue of the warrant. Article 5 w requires states to provide
mechanisms by which an arrested person can "take proceedings by
which the lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not lawful". On this
point, the Corpus Juris refers to national law: arrest warrants
Art, 25 ter w CorpusJurisrunsas follows:"An arrestedpersonis broughtwithout
delayto the iudgeof freedomsof the statewherehe is beingheld.Thejudgeof
freedomschecksthat the warrantconcernsthe arrestedperson,that the arrested
personhasbeenarrestedaccordingto a regularprocedureandthat his rightshave
beenrespected,in accordancewiththe procedurelaiddownin the Corpus]urisand
in nationallaw in accordancewiththe principleof complementarityfoundin Article
35 of the Corpus,Thearrestedpersonhasthe rightto askthe judgeof freedomsof
the placewherehe is beingheldto be baileduntiltransferred",

delivered by the judge of freedoms can be appealed according to

the appeal mechanisms that exist in national law.
Proceedings of the type required by art. 5 w are reported by the
Bulgarian, Estonian, Lithuanian, Polish, Romanian, Slovakian and
Slovenian experts.
3. R I G H T O F V I C T I M S T O
INITIATE PROCEEDINGS
The general human rights-acquis recognises the right of access to

a judge ("an independent and impartial tribunal established by law"
(art. 6w ECHR)), but this does not necessarily mean that victims
have a right to initiate criminal proceedings.As observed previously,
in the Czech Republic, Romania and the SIovak Republic, the public
prosecutor has the monopoly of prosecutions (supra, Chapter 4).
This is, therefore, not an assessment factor for the purposes of this
study, which examines the compatibility of the systems in the
candidate states with the acquis-communautaire.
There is no assessment to be made on this point under the
Corpus Juris either. In the first version of the Corpus Juris, a special
provision was included giving the European Commission the power
to initiate criminal proceedings as a victim, along the lines of the
par~e civile system that is applicable in some of the current EUmember states. The Follow Up-Study revealed, that this provision
was incompatible with the legal systems of the member states that
do not provide a possibility for the pattie civile to initiate
proceedings. Another problem was that giving this right to the
Commission only, and not to other victims, would discriminate
between different categories of victims. There were also practical
difficulties in creating the possibility for the Commission to act as a
partJe civile, and to combine this with other capacities in which the
Commission might act or intervene in the criminal proceeding, for
example in investigations during the pre-trial stage of the
proceeding (via OLAF), or as an expert witness.The provision was
therefore deleted and compensated by a redrafting of the article on
confiscation, which now provides the possibility of confiscation of
instruments, fruits and profits of CorpusJuris-offences to the benefit
of the European Commission (art. 14 ~)82.
This being said, it is always possible for the Commission to act as
a pattie civile in those member states that allow this under their
national legislation. It was therefore relevant to examine the extent
to which this would be possible in the candidate states in the study.
The expert notes that, in most candidate states, the Commission
would have the possibility to initiate proceedings but there are also
states where this would not be possible. For example, in the Czech
Republic, no private prosecution is allowed and the same applies to
Hungary. Some states (Estonia and Romania) require the victim to
be a natural person, which would exclude the Commission. In other
states (Bulgaria and Slovenia), the plaintiff can initiate criminal
prosecutions but cannot, however, replace the public prosecutor.
Only in Poland would direct prosecution by the Commission in the
capacity of a victim seem to be possible.
ERA
28
evolution is likely to take place in the candidate states when their

systems are put to the "Strasbourg-test". Yet, the "osmosis"
between legal systems, which is a necessary result of judicial
integration between states that have integrated their economies,
requires a common minimum protection of fundamental rights in
cross-border fraud cases. One practical problem that would arise
failing this minimum protection would be the inadmissibility of
evidence, both under the acquis (for example, the 2001 EU
Convention on mutual assistance in criminal matters) and under the
Corpus Juris,
There are no incompatibilities with the CorpusJuris -provision on
the subject of the rights of defence. Many states, candidate states
and current members alike, could improve their legislation in
respect of the starting point of the rights of defence, particularly in
respect of the right to silence. However, candidate states and
member states alike could improve the protection of defendants in
financial investigations of offences of the type considered in this
study (Chapter I) by adopting article 29 CorpusJuris.
formulated.
R e c o m m e n d a t i o n 13
It is not for this study to make concrete submissions on the

"Strasbourg-proofness" of the defence rights in the candidate
states, that is the general compatibility of the legal systems under
study with articles 5, 6 and 8 European Convention on Human
Rights. In the same way as for the current member states over the
past decades, the European Court of Human Rights will scrutinize
respect for human rights in the candidate states.
However, lack of "Strasbourg-proofness" of parts of the
legislation in some states may hinder international cooperation with
the current member states and may be problematic, as the evidence
collected in a way that is not "Strasbourg-proof" may be
inadmissible (See also Recommendations 9 and 15).
States that have not yet done so, should give effect to art.29
Corpus Juris in order to protect the rights of suspects during the

pre-trial stage of the criminal proceedings.
Accordingly, a person may not be heard as a witness but must be
treated as accused from the point when any step is taken
establishing, denouncing or revealing the existence of clear and
consistent evidence of guilt and, at the latest, from the first
questioning by an authority aware of the existence of such
evidence; before any questioning takes place the accused must be
informed of his right to silence. From the time of his first
questioning, the accused has the right to know the content of the
charges against him.
CHAPTER
c. Conclusions a n d r e c o m m e n d a t i o n s
Overall, legislation on defence rights in the candidate states

seems to comply with the general acquis, flowing from general
human rights instruments.As the candidate states are all parties to
the European Convention of Human Rights, compatibility on this
point will be subject to scrutiny by the European Court of Human
Rights, as with the current member states of the EU. Many member
states have exposed themselves to this scrutiny for more than
twenty-five years and have adapted their national laws on many
occasions following decisions of the Human Rights Court.A similar
- Forum - 3 - 2001
7 - EVIDENCE
This Chapter deals with the rules of evidence in the candidate

states.The assesment criteria are, like in the other chapters, the
acquis communautaire and the Corpus Juris-rules on the subject. As
far as the acquis is concerned, there are the two first pillarinstruments (Regulation No. 2185/96 (on-the-spot checks) and
Regulation No. 1073/99 (OLAF)) and two Third Pillar-instruments
(Second "PIF-Protocor" and the EU Convention on Mutual
82 Delmas-Marty,M,op.cir.,p,97.
83 SecondProtocolto the Conventionon the protectionof the EuropeanCommunities'
financialinterests(1997),O~ciolJaumalNo, C 221 , 19.07.1997,p,I I,
E R A - F o r u m - 3 - 2001
Assistance in Criminal Matters~).

The CorpusJuris contains a number of specific rules that deal with
the means of evidence (art.20) the burden of proof (art. 3 I), the
admissible means of evidence gathering (art. 32) and the exclusion
of illegally obtained evidence (art. 33).
To the extent that both the acquis and the Corpus provide civil
liberties protection on the subject of coercive measures, the acquis
is art. 8 European Convention of Human Rights (right to privacy),
which sets limits on coercive measures such as searches and
seizures and telephone tap.This problem is examined elsewhere in
this study (supra, Chapters 4 and 6).The questions to be examined
in this Chapter are, as professor Spencer states from the outset, not
whether the laws of the candidate states are tough enough on
fraudsters or whether they provide sufficient guarantees for
suspects and defendants or indeed whether they provide a
sufficient balance between the need to catch criminals and the need
to protect civil liberties.The question is whether the legal systems
of the candidate states allow them to receive the acquis
communautaire on the subject and whether they would be able to
receive the CorpusJuris, were it to enter into force.

I. P O W E R S O F I N V E S T I G A T I V E
FIELD OF EVIDENCE
AUTHORITIES
IN THE
GATHERING
In the CorpusJuris, the European Public Prosecutor would be the

"motor", not only of prosecution but also of investigations. The
collection of evidence by "field investigators" (national and
international police authorities) would be done under his
instructions. It would be the European Public Prosecutor's task to
initiate investigations, direct investigations "in the field" and to
instruct and monitor investigative authorities (national and
European (OLAF)). The (in)compatibilities of the systems in
candidate states with the (quite modest) acquis on this subject have
been examined elsewhere in this study (supra, Chapter 4).
Article 20 Carpus Juris sums up a number of powers that are
conferred upon the European Public Prosecutor for the purposes
of evidence-gathering. These include the questioning of suspects,
collection of documents and/or computer-held information
necessary for the investigation, visits to the scene of the offence;
request addressed to the judge to order an expert enquiry;
searches, seizures and telephone tapping, the hearing of witnesses,
etc. (art.20 w Several of these powers need an authorisation by
the judge of freedoms, and are counter-balanced by individual rights
such as the right to silence of the suspect in art. 29 CorpusJuris.
(i) Questioning suspects

In all candidate states, authorities responsible for investigating
serious fraud have the power to question suspects.
Both the acquis and the CorpusJuris guarantee a right to be silent
for the suspect, but as observed above (supra, Chapter 6), both the
acquis and the Corpus are relatively vague on the subject, and it is
therefore difficult to assess the legal situation in the candidate
states on this point. Professor Spencer summarises the situation as
follows: "At its narrowest, [the right to silence] simply consists of
the notion that (i) the suspect or defendant may not be pressured
into answering questions tending to show him guilty of an offence
by violence or threats of violence, imprisonment, or threat of
prosecution. But when construed more broadly it may also include
any or all of the following: (ii) before questioning, the suspect or
defendant must be informed that he has the right to refuse to
answer; (iii) the suspect or defendant may not be compelled to
29
produce incriminating documents; (iv) the court that eventually

decides on the defendant's guilt or innocence must not treat the
fact that he exercised his right to silence as circumstantial evidence
against him.
All candidate states in the study guarantee the right to silence in
the narrow sense, i.e. the sense that the defendant may not be
pressured to answer questions tending to show him guilty. In
Estonia, the right to silence not only protects suspects, but also
their family members. Looking further into the details of the
legislation under study, the expert notes that, like the current
member states, candidate states vary in the way in which they
protect the right to silence in any wider sense, as was also observed
by Maitre Favreau in his report on procedural rights (supra,
Chapter 6).
(ii) Requesting the defendant to produce documents

The Corpus Juris is not explicit on this point, but it can probably
be inferred from art. 20 3 (b) that the European Public Prosecutor
would have the right to request the defendant (and third persons)
to produce documents on the basis of this article.
In Bulgaria, the accused cannot be compelled to produce
documents, but if he refuses to produce them, the authorities can
always conduct a coercive search. The same can be said for
Hungary, Lithuania, Poland and Slovenia. In the Slovak Republic, an
accused is under the duty to hand over documents, in which case
he is in the same position as a potential witness. In Estonia,
suspected persons cannot be compelled to produce incriminating
documents.
(iii) Questioning third parties

The EU expert observes that in some of the current EU states,
members of the public are legally required to answers questions put
to them by the police and other investigation agencies. In others,
however, such as the UK, citizens are generally free to refuse to
answer investigators' questions except when required to do so by
law. A prominent example in the area under study is fraud, where
citizens are requested to answer questions.
Although the power of the EPP to question third parties is not
explicit in the Corpus Juris, it can be assumed, with the EU expert,
that the adequate protection of Community finances presupposes
a general rule requiring citizens to answer questions put to them by
official investigators, except, obviously, where privileges such as the
privilege of self-incrimination could be invoked.
In many candidate states, there seems to be a general obligation
on members of the public to answer questions emanating from
official investigators. This is the position in Bulgaria, Hungary, the
Czech Republic, Estonia, Poland and Slovakia. In Slovenia, the only
candidate state with an investigating judge, this obligation exists for
persons who have been summoned by this judge. The exemption
from this duty is based on privileges which vary from state to state.
In general, there is the privilege of self-incrimination which protects
potential suspects. But, in addition, several candidate states provide
privileges based upon professional secrecy (secret professionnel).
which resembles the situation in many of the current member
states, at least those on the continent. Some national reports
mention a "medical privilege" (Slovenia), others a "journalistic"
(Lithuania and Poland) or a "confessional" privilege, applicable to
priests (Poland, Slovenia and the Czech Republic).
84 EU Conventionon MutualAssistancein CriminalMatters betweenthe Member
States of the EuropeanUnion,Brussels,29 May 2000,O~ciolJournalNo. C 197,
12.07.2000,p,I.

(iv) Searching property

Under the Corpus Juris, the European Public Prosecutor could
conduct searches for the purpose of investigating Corpus Jurisoffences, subject to a (prior) authorisation of the judge of freedoms
in the form of a warrant. In case of urgency, he could proceed
without a warrant, but there would always be a need for a
subsequent authorization.
Unsurprisingly, the EU expert notes, the power to conduct
searches is available to the authorities in all candidate states,
although, equally unsurprisingly, the details vary considerably from
one state to another.
In many candidate states, searches can be conducted without a
prior warrant delivered by a judge. Often, an authorisation of the
public prosecutor is sufficient. Only in Bulgaria, Lithuania and
Slovenia, there does seem to be a need for a judicial warrant.The
conclusion on this point is that the powers of the authorities to
conduct searches in many candidate states go further than in the
Corpus Juris, where searches always need to be authorised by the
judge of freedoms. Whereas the legal systems in the candidate
states seem to be more accommodating to the prosecution's needs
on this point, the question arises whether they are compatible with
another part of the acquis, namely the right to privacy under art. 8
European Convention of Human Rights which imposes a number of
minimum-requirements upon privacy-invading coercive measures
such as searches and seizures and telephone taps (supra, Chapter 4
and Recommendation 9).
(v) Requiring access to computers

One of the investigative powers of the European public
prosecutor in the CorpusJuris which could be exercised without the
prior authorisation of the judge of freedoms is the power to collect
computer-held information (art. 20(3)b).The implementing article
states that this power is to be exercised under the conditions,
imposed by national law, inter alia on the point of privileges and
professional secrecy.The expert believes that the CorpusJuris could
be supplemented on this point, because it does not mention a
problem that is very important in practice, namely the problem of
encrypted data. Some national legislation in the current member
states allows investigating authorities to require persons who have
the key to encrypted data to give it up.
At present, no comparable powers are available in the candidate
states. In Bulgaria, computers can be seized in the same way as
ordinary objects. Some national reports feel that the lack of
legislation on this point is a serious lacuna8s.
(vi) Requiring banks to divulge details of customer's accounts
This power is not explicitly mentioned in art.20 of the Corpus
Juris.The expert observes that such a power is nevertheless implied
by art. 20 (3)b under which the European Public prosecutor can
collect documents or computer-held information necessary for the
investigation.
This power exists, to a greater or lesser extent, in most of the
candidate states under study. Banking secrecy, which, in various
forms, exists in all the countries in the study, under certain
conditions, does not seem to represent a problem.
(vii) Telephone taps
Under the Corpus Juris, the European Public Prosecutor has the
power to proceed to telephone taps in order to investigate Corpus
Juris offences, on the condition that he has obtained a warrant from
the judge of freedoms. Telephone taps being coercive measures,
/
3O
E R A - F o r u m - 3 - 2001
they would have to comply with the general requirements in art. 25

quater (2): there must be a reasonable suspicion that a Corpus Juris
offence has been committed and the tap must be necessary for one
of the reasons set out in the article (flight of the offender, risk of
repeat offences, preservation of the evidence or avoiding influencing
of witnesses) 86.
The expert notes that there is nothing explicit about the power
of the European Public Prosecutor to intercept other forms of
communication, nor are there explicit provisions about the status
of privileged communications. By analogy with the Implementing
provisions attached to art. 20(3)d (renvoi to national law),the expert
concludes that the draftsmen probably meant to leave the rules of
privilege to be regulated by national law.
All candidate states allow telephone taps for serious crimes.
Some states set a formal limit to the crimes for which tapping is
permissible (five years (Bulgaria, Hungary), four years (Estonia), a list
of named offences (Poland, Slovenia), a crime punished under an
international agreement (the Czech Republic and the Slovak
Republic)).The expert observes that requirements of this kind may
rule out Corpus Juris-offences, for which a limit of 5 years in prison
has been set (with higher penalties only if there are aggravating
circumstances) 87.
There are differences as to the authorities that may tap
telephones.All candidate states require the authorisation of a court
of law, except for Romania, where investigators have a general
power to intercept mail and telephones. Permission is required, but
only of the public prosecutor, not of a judge (which may be
problematic, see Recommendation 9). In the other states, a judicial
warrant is required. In Poland, taps can only be set once criminal
proceedings have been instituted and on the basis of a court
warrant, but an exception exists for fiscal authorities, who may tap
telephones in the course of "operational actions" before a
prosecution has been instituted. This facility is only available for
certain listed offences and is subject to an authorisation of a
Minister or a senior official, depending on the investigating agency
(supra, Chapter 4).
Privileged communications (communications between lawyers
and their clients) are protected only in the Czech Republic and in
the Slovak Republic and also in Lithuania (with an important
exception that allows telephone taps of conversations between
lawyers and clients during visits in prison in the first fifteen days
after detention or arrest). In Bulgaria, Estonia, Hungary, Romania
and Slovakia, no special rules protecting lawyer/client
communications exist. In Bulgaria, only written communications
between lawyer and client are privileged.The question whether this
is compatible with the European Convention of Human Rights will
probably be scrutinised by the European Court of Human Rights in
the future, and it is not for this study to make submissions on this
point. However, lack of "Strasbourg-proofness" may cause problems
of a more general kind (see Recommendation 13)~.
85 Seealsothe Councilof Europe,FinalDraftConventionOn Cyber-Crime,Strasbourg,

22 June2001CDPC(2001) 17,AddendumI.
86 Art. 25 quater(2) runs as follows:'q-hesemeasuresare orderedby the judgeof
freedoms,afterthe EPPhasinformedhim of the charges(cfiArticle20(3f)).Thejudge
of freedomsordersthe measureswhenhe has goodreasonsto suspectthat the
accusedpersonhascommittedone of the offencesdefinedabove(Articles I to 8)
and when he is convincedthat such a measureis necessaryin order:to stopthe
accused personfrom evadingjustice;or to stop a continuationor repetitionof
offences;or to preserveevidenceor preventwitnessesfrom beingpressurised."
87 Seeart. 14 and 15 CorpusJurisand supra,Chapter3 (Sanctions).88 See alsothe
acquison this point:Judgmentof the Courtof 18May 1982,AM& 5 EuropeLimited
v Commissionof the EuropeanCommunities,Case155/79,EuropeanCourtReports
1982,p. 1575.
ERA. - Forum - 3 - 2001
2. E X P E R T O P I N I O N S BY F O R E N S I C A C C O U N T A N C Y
EXPERTS
In most of the "continental" member states of the EU, public
prosecutors and/or courts can appoint forensic experts who
deliver expert opinions that can be used as evidence in a criminal
proceeding.These opinions can be delivered during the preliminary
stage of the proceedings, or during the trial itself. There is no
equivalent of forensic experts in common law, where such
"experts" usually appear as ordinary witnesses.
The Corpus Juris follows the Continental model. It allows the
European Public Prosecutor to address a request to the judge of
freedoms to order an expert inquiry (art. 20 (3)c). Given the nature
of the Corpus Juris-offences, these experts will normally be
accountancy experts.The expert is appointed by the judge on a list
of names of "individuals or corporations appearing on a European
list approved by the member states on the proposal of the EPP"
(art. 32(2)d).
All the candidate states have adopted the "Continental model"
and provide for the appointment of forensic experts by courts, and,
in the preliminary phase, by the public prosecutor and even by the
investigators.The use of accountancy experts is very common in all
the candidate states, in some countries (the Czech Republic, the
Slovak Republic and Hungary), these experts must be chosen from
a pre-established national list. The EU-expert notes that, overall,
candidate states could easily receive the CorpusJuris on the point of
forensic accountancy experts. A potential problem is, however, the
use of a pre-established list in the three countries mentioned, which
could be an obstacle to the court receiving expert advice from an
expert in another country.
In Bulgaria and Estonia, the defence may not appoint experts
during the pre-trial stage. This seems to be in conflict with the
principle of equality of arms, and may be in conflict with art. 6(3)c
European Convention of Human Rights. In Bulgaria, the defence may
ask the court to appoint an expert. See further supra,
Recommendation 13.
3. A C C E S S T O T H E E V I D E N C E A CHARGE BY T H E
DEFENCE
The expert observes that "Acc~s au dossier", alias disclosure of
evidence, is a thorny topic in the law of the member states. On the
one hand, defendants must be given certain minimum information
in advance of trial in order to be able to answer the case against
them - and this is recognised in the case-law of the European Court
of Human Rights interpreting art. 6 of the Convention. On the
other hand, giving defendants extensive rights may sometimes
interfere with the efficient administration of criminal justice".
As discussed elsewhere in this study, the right to disclosure
certainly exists when the case is ready for trial, but the question is
when exactly, in the preliminary stage of the proceedings, this right
is triggered (supra, Chapter 6). As Professor Spencer notes, there
is a clear movement in many current EU member states towards
giving defendants acc~s au dossier at an earlier stage, in order to
enable them to prepare their defence more adequately. This is
extremely relevant for the offences under study, because criminal
investigations are often preceded by administrative inquiries, and
the transition between the administrative and the criminal
investigation is often problematic.
Most candidate states report some degree of acc~s au dossier in
the preliminary proceedings, although it would need to be further
examined as from when exactly this right starts to run and what the
scope of the acc~s is. Like many current member states, most

31
candidate states provide limits on acc~s au dossier in respect of

certain pieces of sensitive information, for example in the case of
protected witnesses (e.g. Hungary, Lithuania, Estonia, Poland). The
EU-expert concludes that overall, candidate states show the same
kind of legal spectrum that exists in the current member states. In
broad terms, they seem to comply with the requirements of "fair
trial" under art. 6 of the European Convention of Human Rights.
4.ADMISSIBILITY
OF EVIDENCE
(i) Admissibility in general

In the current member states of the EU, the rules on the
admissibility of evidence vary widely. On one side of the spectrum
are states that apply the principle of "free admissibility of evidence"
(for example Belgium), in other states, there are strict rules setting
out the means of evidence that may (or may not) be produced at
the trial. For example, common law countries have a strict ban on
hearsay evidence, which seriously restricts the possibility of using
written statements as evidence during the trial.
The CorpusJuris lists a number of forms of admissible evidence in
art. 32 (testimony, European interrogation reports, statements of
the accused recorded by the European Public Prosecutor, reports
of forensic accountants, documents), and adds that this does not
exclude other forms of evidence considered as admissible under
the national law in force in the State of the court of judgement.
The basic rule in all candidate states is the free admissibility of
evidence.This is clearly stated in the codes of criminal procedure of
the Czech Republic, the Slovak Republic and Lithuania.There are
qualifications and exceptions to this rule flowing from the principle
of orality and the exclusion of illegally or improperly obtained
evidence (see below). For example, in Lithuania, a witness's
testimony based on an unknown source of information is not
admissible.The only state which does not seem to apply the rule of
free admissibility of evidence is Bulgaria, where means of evidence,
other than those set out in the code of criminal procedure, cannot
be used.
(ii) Principle of orality

The principle of orality requires that the court which decides on
guilt or innocence must hear the principal witnesses orally. It is
widely applied in common law jurisdictions, where it is maintained
by the rule that hearsay evidence is in-admissible. At the other
extreme are countries like for example the Benelux countries and
France, that allow written statements (proc~s-verbal) to be
produced at the trial, and where courts can base convictions on
such written statements only.An in-between system is applicable in
Germany, where hearsay evidence is not banned as such, but where
courts are nevertheless required to hear the oral evidence from
those who have personal experience of the facts
(Unmiteelbarkeitsprinzip).Written records of earlier statements are,
in principle, inadmissible in Germany.
The expert concludes from his study of the national reports that
most candidate states in the study seem to operate on the basis of
the German system. All national reporters mention the orality
principle, but add that it is permissible to depart from the principle
if two cumulative conditions are fulfilled: it must be difficult for the
witness to appear in court or, given the nature of the evidence, not
particularly important that he should do so and secondly, conditions
apply to the way in which out-of-court statements are given.

(iii) Evidence obtained abroad

In at least some of the countries studied, previous statements can
be used as evidence in trial only if they were recorded by some
organ of the criminal justice system of the state concerned. Poland,
Hungary and Bulgaria fall into this category. The expert observes
that this would not rule out statements recorded abroad by
commissions rogatoires; it would however be a serious obstacle to
the use in evidence of statements recorded by foreign and
European investigative authorities.
(iv) Illegally obtained evidence and the exclusionary rule

The Corpus Juris includes an article on the exclusion of illegally
obtained evidence which tries to achieve a middle way solution
between two extremes that exist in the current member states on
this subject ~. On one extreme, there are countries (e.g. Sweden)
where the way in which evidence was obtained is virtually
irrelevant. On the other, there are countries (e.g. Belgium) that
exclude each and any piece of illegally or irregularly obtained
evidence. The third group excludes evidence in cases where the
breach was serious, but not in others (e.g. the United Kingdom,
Germany, the Netherlands). The Corpus Juris-provision tries to
follow the example of this third group.
The expert notes that, broadly speaking, candidate states adopt a
rule of exclusion that is broader than the exclusion in the Corpus
Juris. Bulgaria, the Czech Republic and also Hungary and Slovenia
have a very strict system, which excludes evidence that has not
been obtained in conformity with the rules of criminal procedure.
Poland is more flexible because it does not apply the "fruit of the
poisonous tree doctrine". In Romania, only breaches of certain
rules (e.g. acts performed in breach of the defendant's right to be
legally represented) lead to nullity. In Lithuania, illegally obtained
evidence is inadmissible subject to the qualification "if the parties to
the proceedings have been deprived of their rights or their rights
have been restricted".
The expert concludes that if the assumption that strict
exclusionary rules create an insurmountable obstacle to the proper
protection of the financial interests of the Community is correct,
"then the laws of some of the candidate states appear not to
provide sufficient protection against budgetary fraud"
(v) Burden of proof

In all member states of the EU, the principle is that the burden of
proof is on the prosecuting party and that the accused does not
have to prove his innocence. In case of doubt, the accused is
acquitted. However, in some member states, recent legislation in
fields such as money laundering and organised crime has led to a
reversal of the burden of proof for the offences in question. This
practice is condoned by the very recent judgement of the European
Court of Human Rights in the case of Philip v UK (july 5, 2001), in
which the Court found that the presumption of criminal origin of
assets acquired prior to the offence for which the accused is
convicted, does not violate Article 6.
No national report for the candidate states in the study mentions
legislation that reverses the burden of proof in criminal proceedings
for particular crimes. There are no proposals to this effect in the
draft codes that are under consideration in many candidate states,
with the exception of Hungary, where a proposal exists to amend
the criminal procedure code to introduce a rebuttable presumption
that any increase in personal wealth is derived from criminal
activities.
E R A - F o r u m - 3 - 2001
32
(vi) Standard of proof and the weight of certain types of

evidence
The expert notes that all candidate states "seem to apply a
standard of proof that is similar to the common law notion of
"proof beyond reasonable doubt'"'.
The laws of several candidate states provide that a criminal court
may not convict a person on the basis of an uncorroborated
confession. This principle is recognised in Bulgaria, the Czech
Republic, Hungary, Romania and the Slovak Republic. In Lithuania
and Estonia, there is a rule to the effect that the defendant may not
be convicted on the basis of the uncorroborated evidence of an
anonymous witness.
5.USE OF EVIDENCE
DOMESTIC
OBTAINED
CRIMINAL
ABROAD
IN
PROCEEDINGS
This section addresses the current difficulties that arise from the
fact that evidence obtained in member stateA cannot always be put
before the courts in member state B. Professor Spencer observes
that this is currently one of the main obstacles to bringing
successful prosecutions for transborder frauds committed to the
detriment of EUofinances.Article 32 Corpus Juris was drafted to
resolve this problem, by setting out the different types of evidence
that should be admissible in the courts of any member state. The
EU-expert analysed the national reports in the candidate states on
each of these points and reached the following conclusions.
Oral testimony from abroad by means of a live television link are
admissible under Slovakian and probably also under Czech,
Hungarian and Polish law. They are not admissible in Bulgaria,
Estonia, Lithuania and Romania. The position in Slovenia is
uncertain.
Written statements taken from the defendant abroad would be
admissible in all candidate states if obtained at the behest of a
commission rogatoire.The EU-expert notes serious problems in cases
where the statement was not so obtained. Such statements would
not be admissible in most candidate member states. Admissibility
could perhaps be achieved subject to the general exceptions that
exist in a number of candidate states regarding the principle of
orality, but then the two above-mentioned cumulative conditions
would need to be fulfilled (supra, this Chapter). This would be the
position in the Czech Republic, Estonia, Hungary, Lithuania, the
Slovak Republic and Slovenia. Tape-recordings of statements of
defendants and witnesses are dealt with in the same way as
statements recorded in writing in the following candidate states:
Hungary, Bulgaria, Estonia and Lithuania.
Transcripts of evidence given in foreign legal proceedings would not
be admissible in Bulgaria.They would be admissible in Hungary and
the SIovak Republic, but the position in other candidate states is
uncertain. Telephone taps obtained abroad would be admissible in
Bulgaria, the Czech Republic, Estonia, Hungary and Lithuania.
Clues, original documents etc., obtained abroad would be admissible,
but the expert points out that serious difficulties could
nevertheless arise in a number of candidate states (Bulgaria, Estonia
and the Czech Republic).
The question whether the admissibility of evidence obtained
abroad would depend on the way in which such evidence was
obtained was answered as follows. The picture resulting from
89 Article33 (I) readsas follows:In proceedingsfor one of the offencesset out above
(Articles I to 8) evidencemustbe excludedif it was obtainedby Communityor
nationalagentseitherin violationof the fundamentalrightsenshrinedin the ECHR,
or in violationof the Europeanrules set out above(Articles 31 and 32), or in
violationof applicablenationallaw without beingjustifiedby the Eur~opeanrules
previouslyset out; but suchevidenceis onlyexcludedwhereits admissionwould
underminethe fairnessof the proceedingsto admitit.
E R A - Forum - 3 - 200 !
answers in the national reports for the candidate states

corresponds by and large to the picture of the current EU member
states, where the same difficulties exist.The problems in receiving
Article 33 (2) CorpusJuris, which aims at resolving these difficulties,
would therefore probably be the same as in many current member
states. Legislation would be required to ensure compatibility with
this article and to give adequate protection to Community finances.
The expert concludes that the legal system in those countries
where the question whether the legality of evidence obtained
abroad is not determined according to the locus reg/t actum rule,
would conflict with art. 33(2) Corpus Juris.
6. P A R T I C I P A T I O N O F F O R E I G N A N D
EU-INVESTIGATORS I N N A T I O N A L I N - V E S T I G A T I O N S
The laws of the candidate states differ widely on this point. On
the one extreme are those states which allow participation of
foreign and EU-investigators in national investigations, usually in the
form of passive attendance only. in this group are the Czech
Republic, the Slovak Republic, Hungary, Lithuania and Poland. The
group of states where this would not be possible includes Romania,
Bulgaria and Stovenia. In Bulgaria, the presence of a foreign
investigator at the evidence-collection would make the evidence so
obtained inadmissible.
Upon accession, Regulation No. 2185/96 of II November 1996
concerning on-the-spot Checks and Inspections carried out by the
Commission in order to protect the European Communities'
Financial Interests against Fraud and Other Irregularities (1996) and
Regulation No. 1073/99 (OLAF) will become directly applicable in
candidate states and on-the-spot-checks by OLAF-inspectors will
be possible, They will also have to provide legislation for the
purposes of implementing art.7 of the Second PIF-Protocol, which
allows OLAF to provide technical and operational assistance in
fraud investigations.
It appears from this Chapter that, overall, candidate states in the

study provide the classical means of evidence that have been listed
in art. 20 Corpus Juris and that are also available in the current
member states, including the questioning of suspects and witnesses,
searches and seizures, telephone taps etc. They all allow the
appointment of forensic accounting experts, which is an advantage
in criminal trials of the kind that are the subject of this study, where
financial and economic expertise is usually essential. An important
practical improvement suggested by both Professor Spencer and
MaTtre Favreau is that testimony from abroad by video link should
be made possible in those states where it is not yet allowed.
From that perspective, reception of the Corpus Juris in the
candidate states does not seem to be problematic. There are,
however a number of points on which reception of the Corpus Juris
may be more problematic. Professor Spencer makes a number of
detailed submissions on these points (not only directed towards
the candidate states but also to the current member states which
do not comply with these points of the CorpusJuris).An important
loophole that would need to be filled in some states is the
requirement according to which statements of witnesses must be
recorded by the national investigative authorities of the state where
they will be used in evidence and which makes statements given to
foreign authorities inadmissible before their national courts. This
requirement virtually excludes testimony given abroad other than
that obtained in a commission rogatoire.Another potential difficulty
that appears from the study is that the rules on admissibility of
/
33

irregularly or illegally obtained evidence are more rigid in some

candidate states than they are in the Corpus Juris. It seems
premature to formulate a general recommendation on these issues
for the purposes of this final report, as the problems that have
appeared in the analysis are not peculiar to the candidate states and
would also deserve further consideration in some of the current
member states.
As appears from other findings of this study (Chapters 4 and 6),
investigative authorities in many candidate states can collect
evidence by means of coercive measures with much more ease than
investigative authorities in the current member states, because they
often do not need warrants in the case where such warrants are
required in the current member states. All but three candidate
states allow home searches without prior judicial warrant and in
one state, telephones can be tapped without the authorisation of a
judge. In those states where telephone taps need a judicial warrant
the advocate-client privilege seems to be hardly protected.To the
extent that evidence obtained by coercive measures and without a
judicial warrant would infringe art, 8 European Convention on
Human Rights, such evidence would be inadmissible before trial
courts in many third states.Were the CorpusJuris to be in force, it
would also be inadmissible under art. 33 (I) Corpus Juris. On this
point, reference is made to Recommendations 9 and 13 above.
Participation by EU investigators in national investigations
relating to offences against the financial interests of the European
Community, which will be required upon accession, seems to be
problematic in some candidate states, where EU-investigators
would not be allowed to perform on-the-spot-checks or lend
technical and operational support to local investigators.
formulated.
Recommendation 15
Evidence obtained abroad should be admissible before national
courts provided that it was legally obtained according to the rules
of the place where it was gathered (locus regit octum), and provided
that it was obtained in conformity with the European Convention
on Human Rights (of. Recommendation 13).
Due regard should be given to the rules on evidence in the
European Convention on Mutual Assistance (2000), particularly
relating to evidence obtained abroad. In particular, testimony from
abroad by video link should be made possible in those states that
do not allow it yet.
Adoption of article 32 of the Corpus Juris (admissible evidence)
would considerably facilitate the "free movement of evidence" in
the European legal area, in furtherance of w of the Tampere
milestones.
Candidate states that have not yet done so should, before
accession, create an appropriate legal environment to allow on-thespot-checks by OLAF under Regulations No. 2185/96 and 1073199,
and technical and operational support by OLAF under art. 7 of the
Second PIF-protocol. Reports made under the Regulations referred
to must be given the same effect in judicial proceedings in Member
States as reports drawn up by national inspectors.

o f the EU in the Candidate States
CHAPTER
8 - RECOVERY
This part of the study examines the rules on recovery in the

candidate states, in an attempt to assess whether these rules offer
an adequate protection to misappropriated funds of the European
Community.
In the great majority of cases (all except misappropriations
relating to direct expenditure), misappropriated EC-funds cannot be
directly recovered by the Community itself, but must be recovered
by the member states.The reason for this is that the great majority
of EU-funds are not directly administered by the European
Community, but by the member states. Member states are under a
duty to recover unpaid customs duties and levies (100% of which
accrue to the Community) and VAT (approximately I% of which
accrues to the Community), and they must also recover
misappropriated subsidies such as export refunds and structural
funds that were obtained unlawfully.
The protection of the financial interests of the European
Community is therefore almost completely dependent on the
member states (indirect recovery). It is therefore essential to examine
the situation in the candidate states and to examine not only what
the current mechanisms for the recovery of misappropriated funds
of national origin are, but also whether these mechanisms can be
used effectively to recover misappropriated funds of EU-origin.
In those cases where direct recovery by the EU is possible
(misappropriations relating to direct expenditure) requests for
reimbursement issued by the Commission, need to be stamped by
the competent authorities of the member states (usually the
Ministry of Justice) before they are executory.This means that, also
in case of direct recovery, the need for cooperation by national
authorities exists (see art. 256 EC Treaty (ex art. 192)).
The acquis communautaire yardsticks for the assessment are
described in detail in the horizontal report.The EU provisions on
recovery are contained in the Financial Regular/on of 2/ December
1977 Applicable to the Budget of the European Communities, which
institutes a mechanism in which firsdy, the amount due to the
Community is estimated by an authorising officer, secondly, a
recovery order is issued by the same officer, after an authorisation
by the financial controller, and thirdly, recovery is carried out by an
accounting omcer. Particular procedures for recovery exist for
specific types of EU-funds, for example in the 1992 Customs Code.
The relevant specific instrument for the purposes of this study is
Council Regulation No. 2988/95 on the Protection of the European
Communities Financial Interests that, however, does not introduce
a particular mechanism of recovery.
Direct recovery is regulated by art. 256 EC Treaty. There are
several texts on indirect recovery (where, seen from the viewpoint
of the Commission, the debtor is the member state who must seek
recovery, not the fraudster himself). An important recent
instrument is Regulation No. 1150/2000 of 22 May 20009~ which
provides a procedure allowing the Commission to seek
reimbursement from the member states in the case it considers
that the lack of recovery is due to the member state in question.
For funds related to agriculture, misappropriated funds may be
deducted from the funds awarded to the particular member state
in the following year. In some cases, penalties may even be added.
The CorpusJuris does not deal with recovery.The only provisions
that come close to this subject are the article on settlement (art.20
(2)b), and the article to the effect that the European Public
Prosecutor is responsible for overseeing the execution of sanctions
(arc. 23).
/
34
ERA
- Forum.
3 - 2001

All candidate states in the study have mechanisms for the
recovery of state funds. Dr. Xanthaki notes a surprising degree of
uniformity in the existing procedures in the candidate states. All
countries have introduced administrative mechanisms for the
recovery of customs duties, subsidies,VAT and taxes.Administrative
procedures are used as a starting point. If these procedures are
disproportionate, lengthy or if the outcome is dubious, national
authorities can use existing mechanisms of civil procedure
commonly available to all creditors. Examples of states where these
civil mechanisms are available are the Czech Republic, Estonia,
Poland, Romania, the Slovak Republic and Slovenia.When criminal
offences related to taxes and customs have been committed,
recovery may also be the outcome of civil proceedings brought
within or after the criminal proceeding. In the Czech Republic,
Estonia, Poland, Romania and the Slovak Republic, recovery is
possible within the criminal trial, by the use of civil procedures.
One group of countries allows for the recovery of EU-funds
through these national mechanisms: the Czech Republic, Hungary
(for EU-expenditure only), Lithuania and the SIovak Republic. A
second group does not provide for the recovery of EU-funds, but
foresees that upon accession their national legislation could be
easily amended on this point.This group includes Estonia, Hungary,
(for EU-income) and Romania. In the other candidate states in the
study (Bulgaria, Poland and Slovenia), the use of national recovery
mechanisms for misappropriated EU-funds seems more
problematic. According to the EU-reporter, this is "extremely
serious, if one takes into account that the current acquis (including
the Financial Regulation, art. 256TEC and Regulation 2988/95) does
not apply to non-member states, with the exception of course of
the provisions included in the pre-membership accession pact for
each country. This leaves the recovery of EU-funds in states like
Bulgaria, Estonia, Hungary (with regard to every fund except
expenditures), Poland, Romania and Slovenia in a rather feeble
position".
National procedures for the recovery of misappropriated funds
in the candidate states are very similar. Most legislation allows
national authorities to issue an administrative individual order
calling the debtor to pay the amount of the debt within a prescribed
period. When this does not happen, the normal execution
mechanisms enter into play.The expert summarises this as follows:
"After the end of this deadline some national authorities issue a
precept for payment of arrears which sets another, this time final,
deadline by which payment must be made. [...] If the debtor refuses
to pay or if the deadline set in the precept passes without result,
most countries demand an execution order which, as an executory
document, will constitute the basis of forced recovery
proceedings". Execution orders are required in Hungary, Lithuania,
Poland, Romania, the Slovak Republic and Slovenia. For other
countries in the study (Bulgaria, Estonia and Lithuania), the mere
expiry of the deadline set for the payment of the debt is sufficient
to trigger the initiation of the recovery procedures.
Appeals against the different steps of the recovery procedure are
available in all candidate states in the study. These appeals do not
suspend the recovery process, except in Bulgaria, Hungary and
Poland.
Article 5 of Regulation No. 2988/95 provides a list of
administrative penalties that include the following: the imposition of
an additional sum on top of the sum initially owed, the total or
90 Council Regulation (EC, Euratom) No, 1150/2000 of 22 May 2000 implementing
Decision 94/728/EC, Euratom on the system of the Communities' own resources,
O~cialJournal No, L 130,31.05,2000, p. I-12.
ERA - Forum - 3 - 2001
partial removal of any advantage enjoyed as a result of the fund

awarded to the debtor, the exclusion of the debtor from future
advantages, exclusion from participation in future Community
schemes, the loss of any security provided for the specific fund, and
any other economic penalty introduced by the Council for the
particular sector. The expert notes that fines, additional payments
and seizure of part or total of the security provided for the debt
are penalties that are available in most of the candidate states.
However, the exclusion of the debtor from future funding seems to
be available only in Hungary and Poland, and even in Hungary,
exclusion is only possible until the payment of the debt, whereas
the Regulation provides exclusion as a longer term penalty (see also
supra, Chapter 3 and Recommendation 7).
Another difficulty identified by the EU-expert is art. 9 of
regulation No. 2988/95, which provides that OLAF should have
access to the recovery process in the member states. None of the
countries in the study allows full access to OLAF, she notes, thus
rendering any control by the Commission rather difficult.
There is no specific acquis on recovery, which could be used as a

yardstick for assessment in concluding this Chapter. There are,
however, the general regulations that also apply to the offences in
the present study.
Upon accession, candidate states will directly apply the various
instruments that are discussed in this Chapter. As most of these
instruments are regulations, they will be directly applicable and the
assimilation of national debts and EU debts will be automatic.
Meanwhile, an important loophole needs to be filled before
accession, in view of the fact that this assimilation does not, here
and now, exist in many candidate states.
Some candidate states do not possess the whole range of
administrative sanctions that they would be required to provide
under art.5 Regulation No. 2988/95. For example, several candidate
states do not provide the exclusion from future subsidies as a
sanction. This conclusion has led to Recommendation 7 (supra,
Chapter 3).
With these exceptions, recovery mechanisms in candidate states
seem to be quite adequate.The CarpusJuris is silent on the subject
of recovery. Dr. Xanthaki rightly believes that it should be
supplemented with provisions to the effect that OLAF should be
given the possibility to supervise recovery and that the European
Public Prosecutor should also take a more active part in the
process.
made:
Candidate states that apply existing recovery mechanisms only to

national state debts should make these mechanisms available for the
recovery of misappropriated EC funds.

)5
CHAPTER
9 -WHISTLEBLOWING
a. Introduction
This part of the study examines the legal position of

"whistleblowers" in the legislation of the candidate states. In the
introduction to the questionnaire, whistleblowing is defined as
"exposure of fraud and abuse by an employee". Many countries give
statutory protection to public employees who in good faith report
waste, fraud or other violations of the law. Some states also afford
protection to private employees and to auditors of companies and
trustees of bankruptcy administrations.
Professor Nuutila observes that, despite the fact that the
European Commission and its services as well as the European
Parliament have repeatedly emphasised the importance of
whistleblowing as an instrument in the fight against fraud, there is,
as yet, no acquis communautaire on the subject. No statutory
definitions exist on EU level.The only text of importance is the EC
Directive on Money Laundering, which obliges any organisation
providing banking services and any professional engaged in specified
activities to report unusual transactions where there is a suspicion
of money laundering.
The Corpus Juris is also silent on the subject of whistleblowing.
Article 19 (I) states that "The EPP must be informed of all acts
which could constitute one of the offences defined above (Articles
I to 8), by the national authorities (police, public prosecutors, juges
d'instruction, agents of national administrations such as tax or
Customs authorities) or the competent Community body, the
European Office for the Fight against Fraud (OLAF). It may also be
informed by denunciation from any citizen or by a complaint from
the Commission. [...]", Without, however, addressing the position
of the whistleblower.
Professor Nuutila identifies three potential categories of
whistleblowers: public officials, auditors of companies and trustees
of bankruptcy administrations and private employees and other
private persons.
I. P U B L I C O F F I C I A L S
In all candidate states, public officials are under a duty to inform

either the police or the public prosecutor of crimes and
irregularities which they encounter in the course of the exercise of
their duties. Breach of this duty is not an offence in most candidate
states, except in Hungary, where it is a disciplinary offence and in
Slovenia, where it is an offence in cases of large property loss and
business fraud cases.
The EU expert notes that data protection regulations and
bureaucratic structures can hinder effective cooperation and
information flow between government agencies. Improving the
exchange of information between these agencies would contribute
to a more adequate protection of EU financial interests.
2.AUDITORS
Further consideration should be given in the acquis

communautaire to the possibilities of associating the Commission,
through OLAF, in the recovery-process (supervision, active
participation, etc.).
Concomitantly, the possibility should be considered of
supplementing the Carpus Juris with a provision on recovery in
which the European Public Prosecutor plays an active part.
OF COMPANIES ANDTRUSTEES
BANKRUPTCY
OF
ADMINISTRATIONS
Auditors of companies and trustees of bankruptcy administrations

are usually bound by a duty of professional secrecy to their clients.
Under current money laundering statutes in many states (often
adopted in implementation of international instruments on money
laundering), these professionals are also under a duty to report
irregularities to the authorities. In some states, the latter duty
overrides the former. National systems vary as to who this reporting
should be done: to the public prosecutor's office directly, or to the
management of the company or the bankruptcy administration.

of the E U in the Candidate States
Auditors, in most candidate states, are not bound to report

breaches of law to public authorities, except in Romania, where
they are under a duty to do so and in Poland, where auditors have
an explicit right to blow the whistle. Professor Nuutila observes
that in most of the other candidate states, the law requires auditors
to keep such information secret because of business secrecy rules.
On the contrary, trustees of bankruptcy administrations are, in most
candidate states, in a position where they have not only the right,
but in some states even an obligation (Estonia, Poland, Romania and
Bulgaria) to blow the whistle.The reporting duty is, however, not
vis-a-vis public authorities but vis-a-vis the bankruptcy
administration.
3. PRIVATE E M P L O Y E E S A N D O T H E R P R I V A T E
PERSONS
In all candidate states, employees have the right to blow the
whistle on frauds and irregularities. This right is either explicitly
guaranteed by law, or derived from general principles. Some
candidate states envisage the introduction of explicit protection for
whistleblowers in national labour legislation or in company law
(Estonia) or even in the criminal law (Hungary). In all countries in
the study, dismissal from work because of whistleblowing is illegal.
The EU expert notes that there are, however, no legal systems
protecting known whistleblowers of fraud from retaliatory
measures, as suggested by ILO-Convention 158, art. 5(c).
Under Bulgarian and Romanian law and also in the Slovak
Republic and in Slovenia, there is a duty on private employees to
report fraud. The expert notes that this is quite uncommon
(outside the area of money laundering).
4.ANONYMITYAND
OTHER FORMS OF
PROTECTION FOR WHISTLEBLOWERS
Some candidate countries know the system of "trust lines" that
allows individuals to report offences anonymously. Such telephone
lines exist in Lithuania, Slovenia and Hungary.
Testimony of anonymous witnesses is, in most candidate states,
not admissible as evidence in court, but several states have
introduced legislation on specially protected witnesses, allowing
them to keep their identity secret. Such legislation has been
adopted in Hungary, the Czech Republic, Slovenia, Poland, Estonia
and Lithuania. The expert notes that this protection is usually not
available in cases of fraud.
Some candidate states give special rewards to informers
reporting their own crimes or crimes committed by accomplices in
the form of mitigating circumstances (the Czech Republic, Estonia,
Hungary and Slovenia) or even immunity from punishment (Poland,
Hungary and Lithuania). No candidate state reports the existence
of financial rewards or incentives for informants.
There is no acquis communautaire and not even a generally

accepted definition of the concept of whistleblowing. Consequently,
there is no yardstick by which to measure the legislation on the
subject in the candidate states and it is therefore impossible to
make formal recommendations on this point.
This being said, Professor Nuutila nevertheless makes a number
of submissions that could improve the protection of the financial
interests of the European Community in the candidate states. He
believes that information exchange between national investigative
authorities should be improved, including the information flow
between tax, customs and subsidy agencies. Public officials should
be under a duty to report to the public prosecutor and private
E R A - Forum - 3 . 2 0 0 1
36
employees and auditors should have the right to blow the whistle.
On EU-level, the rote of OLAF should be clarified and financial
incentives to informants should be examined. In general, the expert
believes that the EU should encourage trust telephone lines.
In concluding Chapter 9, the following recommendation is made.
Persons who blow the whistle on offences against the financial
interests of the European Community should receive adequate
protection. Further thought should be given to what form this
protection should take under various branches of the law (labour
taw, administrative law, criminal law etc.).
The delicate question whether or not whistleblowing should be
encouraged with financial incentives deserves further examination.
C H A P T E R 10 - I N T E R N A T I O N A L
COOPERATION
a. Introduction
This Chapter examines legal systems in the candidate states on

the subject of international cooperation. It looks at the geographic
reach of national criminal laws, at the various forms of international
cooperation (extradition, mutual assistance, transfer of criminal
proceedings and transfer of execution of criminal judgements) and
at secrecy of investigations seen from an international perspective
(exchange of information and data protection).
There is a vast ocquis communautaire on this subject.Although this
study is only concerned with offences against the financial interests
of the European Community, it is necessary, for the purposes of this
Chapter, also to examine the general instruments on international
cooperation that do not specifically address EC-fraud but are
nevertheless applicable to it.
The Corpus Juris contains no provisions on international
cooperation, The "vertical" model it proposes would in fact be a
substitute for international cooperation, and would be very
different from the traditional cooperation schemes, which are based
on a "horizontal model" where the main actors are states. In the
Corpus Juris, cooperation would be replaced by direct enforcement,
with the European Public Prosecutor as a central steering
mechanism. The "European legal area" (espace judiciaire europ~en)
would become a single jurisdictional unit, extradition and other
coercive measures would be replaced by European enforcement
orders and judgements rendered by courts in one member state
that would be automatically enforceable in the whole European
area. The Corpus Juris idea was built on the premise that classical
"horizontal" cooperation mechanisms, where states operate side by
side, are not only slow but also ineffective as a result of the
conditions (e.g. double criminality) and obstacles (e.g. fiscal
exception, banking secrecy) that are typical for this form of
cooperation. This premise may be wrong for ordinary criminal
offences, but appears to be correct for fraud offences". The
proposal is to substitute the horizontal system with a "vertical"
mechanism in which a European Public Prosecutor would act, not
as a mere facilitator or co-ordinator of inter-state cooperation, but
as a central steering mechanism with operational powers in the
investigation and prosecution of EU-crimes.
The proposed approach was quite revolutionary when it was
formulated in 1997, and has been criticized by many as too radical '2.
91 See Final Report on the first evaluation exercise
mutual assistance in criminal
matters adopted by the Council on 28 May 2001, in~ra, note 97, 15.94 Presidency
Conclusions, Tampere European Council, 15 and 16 October 1999, SN
2001991CABIENI I,
92 For a recent critique, see Evan Bell, "A European DPP to Prosecute Euro-fraud?',
Criminal Law Review 2000, 154- f 68.
E R A - Forum - 3 - 2 0 0 1
However, since the Treaty of Amsterdam (1997) ~, the Tampere

milestones (1999) ~ and the Treaty of Nice (2000) 9s the idea of
direct enforcement has become less futuristic, even if proposals to
introduce the European Public Prosecutor have, as yet, n o t been
successful ~. Direct contacts between judicial "actors" are becoming
the rule, rather than the exception, although much needs t o be
done stitl'7. Meanwhile, Eurojust has been created ~ and direct

enforcement of judicial decisions in the pre-trial stage of the
proceedings, is on the political agenda of the European Union. A t
the time of writing of this final report (September 200t), draft

framework decisions are in the process of being elaborated in such
fields as the execution of orders freezing assets o r evidence'9, the
application of the principle of mutual recognition of financial
penalties '~ and European arrest warrants'~ The Commission has
introduced proposals f o r

37
penal directives in such fields as
environmental law '~ and the protection of the financial interests of
candidate states in the study would be legally equipped to apply this

legislation extraterritorially in the sense required by the same
conventions.
As appears from the conclusions of Chapter I, a number of cases
exist where this condition is not fulfilled. There are, in many
candidate states, important loopholes to be filled on the subject of
substantive legislation criminalizing acquis-texts under national law.
For example, several states in the study do not seem to provide
adequate legislation on the subject of subsidy fraud, misapplication
of EU funds, laundering profits of EU-offences and some forms of
counterfeiting the Euro. The implications of such loopholes from
the perspective of this paragraph are far-reaching.
An obvious implication is that states which lack adequate
substantive jurisdiction will be unable to prosecute the offence
domestically, when the act is committed on their territory.A further
implication, however, is that it may hinder international cooperation
the European Community '~ Regarding unauthorised entry, transit

and residence, there is a proposal for a directive '~ and a proposal
for a framework decision '~
For the purposes of the assessment exercise that is the objective

of this study, the questions t o be examined in the present Chapter
are, like in the preceding chapters, whether the candidate states
comply with the current acquis and whether they would be able to
receive the Corpus Juris, if it were t o be introduced.
b. C o m p a r a t i v e analysis c a n d i d a t e states
I.GEOGRAPHICAL
R E A C H OF T H E C R I M I N A L L A W
(i)Extraterritorial jurisdiction
The problem addressed by the international instruments that
constitute the acquis communautaire for the purposes of this
paragraph is that states do not always have adequate rules on
extraterritorial jurisdiction when it comes to prosecuting crimes
against the financial interests of the EU. In o r d e r t o fill this lacuna,
international criminal law conventions usually oblige states to
provide legislation allowing them t o prosecute certain crimes when
committed abroad. Such provisions have been enacted f o r nearly all
acquis-offences
in this study (EU fraud, c o r r u p t i o n , money
laundering and receiving, participation in a criminal organisation

(conspiracy) and counterfeiting the Euro). The treaty-provisions
(and, in the case of the Euro, the framework decision provision) that
were made for each of these offences require states to provide
territorial jurisdic~on and extraterritorial jurisdiction where the

crimes were committed by their nationals (active personality
principle).
All candidate states in the study provide adequate jurisdictional
rules on this subject. They all have laid down rules on territorial
jurisdiction and provide for the application of the active personality
principle. In addition, they often have very broad rules on universal
jurisdiction, allowing for the prosecution of all extraterritorial
crimes (and not just a list with specific crimes) on the condition of
double criminality. This broad version of the universality principle
exists in Hungary, Romania, the Czech Republic, the Slovak
Republic, Lithuania and Slovenia.The legislation of these countries is
very accommodating t o the need for prosecution of crimes
committed abroad.
However, it is not sufficient for candidate states t o be in a
position actually t o prosecute the crimes that are the subject of this
study when such crimes have been committed extraterritorially.
The prerequisite, obviously, is for states t o
have introduced
legislation allowing them to prosecute and punish the offences

under national criminal law. If that condition would be fulfilled, all
93 Treaty of Amsterdam amending the Treaty on European Union, the Treaties

establishing the European Communities and certain related acts,Amsterdam, 2
October 1997,O~cialJoumal No. C 340, I0. I I. 1997,p. I, hereinafterreferredto as
TEU,
94 PresidencyCondusions,Tampere EuropeanCouncil, 15 and 16 October 1999,SN
200/99/CABIEN/I.
95 Treatyof Nice,Amendingthe Treatyon EuropeanUnion,the Treatiesestablishingthe
European Communitiesand certain related acts, Nice, 26 February 2001, O~cial
Journal No. C 80, 10.03.2001,p. I.
96 EuropeanCommission,Additionalcontributionto the IntergovernmentalConference
on Institutional Reforms,The criminal protection of the Community's financial
interests, CAM(2000) of 29 September2000; EuropeanParliament,Committee of
Independent Experts,Second Report on Reform of the Commission.Analysisof
current practiceand proposalsfor tacklingmismanagement,irregularitiesand fraud,
I0 September 1999;EuropeanParliament,Resolutionon criminal proceduresin the
European Union (Corpusjuns), 16 April 1999; European Parliament, Resolution
containing Parliament's recommendations to the Commission on introducing
protection under criminal law of the Union's financial interests, 19 January2000;
EuropeanParliament.Resolutionon the 1998annualreport by the Commissionon
protecting the Communities' financial interests and the fight against fraud
(COM(1999) 590 - C5-0058L2000 - 2000/2032(CO5)), 16 May 2000; European
Parliament, Resolution on the Commission communication 'Protection of the
Communities' financial interests - The fight agatnstfraud - For an overall strategic
approach'(CAM(2000) 358 - C5-0578/2000- 2000/2279(COS)), 13 December2000.
97 Seethe Final Report on the first evaluationexercise- mutual assistancein criminal
matters adopted by the Council on 28 May 2001, Of~ciatjournal No. C 216114,
0 t ,08,200~,particularlyRecommendation15.
98 Council Decisionof 14 December2000 settingup a ProvisionalJudicialCooperation
Unit, O~cialjoumalNo. L 324, 21.I 2.2000.
99 Initiative by the Go~emmentsof the French Republic,the Kingdomof Swedenand

the Kingdomof Belgiumfor the adoptionby the Council of a FrameworkDecision
on the execution in the EuropeanUnion of o~ters freezingassets or evidence,
Brussels, 2 February 2001, 5126/0t; E. Bathe, ~Une presentation du proiet de
d~cision-cadre relatif ~ la reconnaissancedes d~cisions de get des avoirs et des
preuves'; G. Stessens,"The Joint tniti~ve of France,Swedenand Belgiumfor the
Adoptionof a CouncilFrameworkDecisionon the Executionin the EuropeanUnion
of Orders FreezingAssetsor Evidence";J. Schutte,~
sur le proiet de
d~cision-cadrerelatif~.Fex~cutionclansl'Unioneurop~ennedes d~cisionsde gel des
avoirs ou des preuves',in G, de Kerchoveet/~ Weyembergh,La reconnaissance
mutuelfedesd~cisionsjudiciairesp~nalesdonsi'Unianeurop~enne,BruxeIles,Editionsde
t'Universit~ de BruxeHes,2001,forthcoming,
100Proposalof the French Republic,the Kingdomof Swedenand the United Kingdom
for the adoptionbythe Councilof a draft FrameworkDecisionon the applicationof
the principle of mutual recognition to financial penalties,Brussels I2 july 200t,
107t0/01, COPEN 37, See P~ Bradley,"Mutual RecognitionApplied to Financial
Penalties", in G. de Kerchoveet A. Weyembergh,Lo reconnaissancemutuetle des
d~cisionsjudiciairesp~nalesclansl'Union europ~enne,Bruxetles,Editionsde t'Universit~
de Bruxeltes,200t, forthcoming,
t01 EuropeanCommission.Directorate-Generalof Justiceand HomeAffairs, Discussion
paper on Extradition, 15 May 2001.This proposal is to be finalisedby the end of
September200l.
102Proposalfor a Directive Of The EuropeanParliamentAnd Of The Council on the
Protection of the Environmentthrough Criminal Law,presentedby the Commission,
13 March2001,CaM (2001) 139 final.
103Proposal for a Directive of the European Parliamentand of the Council on the
criminal-law protection of the Community's financial interests, presented by the
Commission, 23 May 200h Doc, CaM (2001) 272 final, O~cialJournal No, C 240
E/125,28.08,200I.
104Draft Council Directive definingthe facilitation of unauthorised entry, transit and
residence, 10075/01 DROIPEN54 MIGR51 COMIX 457,05.07.200I, p. 3.
105Draft Council FrameworkDecisionon the strengtheningof the penalframeworkto
preventthe facilitationof unauthorisedentry and residence,10075/01 DROIPEN54
MIGR 51 COMIX 457,05.07.200I, p. 9.
Protection of the Financial Interests

The
with states that would wish to prosecute these offences. If EU

subsidy fraud is punishable in state A but not in state B, Mrs Jones,
a national of state A who committed a fraud offence in state B will
often not be punishable in State A for lack of double criminality. If
State A requests mutual assistance in criminal matters from State B
for fraud offences, B is likely to be not in a position to grant the
request, also for lack of double criminality.
Consequently, the problems that arise here do not flow from the
absence of adequate rules on (extra) territorial jurisdiction
(jurisdiction ratione loci), but from the absence of adequate rules on
substantive jurisdiction (jurisdiction ratJone materiae).
Despite the fact that, theoretically, double criminality should not
be a real problem under the current mutual assistance schemes of
the acquis, the assessment of the Council (May 2001) shows a
different picture, especially where coercive measures are
concernedj~ Describing the situation in the current member
states, the Evaluation report concludes:
"!'he question of double criminality should become less acute as
harmonisation of substantive criminal taws develops within the
European Union, even though an observation from the evaluations is
that double criminality could be a potential obstacle to mutual
assistance,principally where coercive measures are requested".
If the CorpusJuris were to be adopted, CorpusJuris-offences would
be applicable all over the European territory, and
harmonisation/unification would be the result. Problems of double
criminality would therefore not arise.
(ii) European territoriality and the E u r o p e a n legal area
Since the Treaty of Amsterdam, the European Union is taking
steps to give substance to the notion of the European area of
freedom, security and justice in articles 2 and 29 of the TEU, which
now has the status of an objective of the European Union. There
are, basically, two approaches to this idea: either the territory is
conceived as a unit composed of fifteen different sub-units, or it is
conceived as one single jurisdictional unit. In the first case, fifteen
equals fifteen (15=15), in the second, fifteen equals one (15=1).
Variable geometry variations can be imagined ( 15= x + y), especially
since the encouragement of this formula by the Treaty of Nice j~ In
the field of international cooperation in criminal matters, there are
precedents of variable geometry that, ultimately, led towards
greater judicial integration of the EU as a whole. The Schengenconvention is the prominent example. It was originally concluded
between a small minority of EU-member states, and now binds
thirteen member states and even two non-member states, Iceland
and Norway (by association). It served as a laboratory for closer
cooperation, starting in a group of a few member states only, and
thereafter expanding to the whole Union and even outside the
Union.This "variable geometry" is encouraged by theTreaty of Nice
(Clauses N, O and P).
The traditional approach under the Third Pillar is the first one:
15= 15. Under this approach, the way to achieve judicial integration
is by improving the traditional forms of international cooperation
(extradition, mutual assistance, etc.) through the process of
gradually limiting the conditions and obstacles and of simplifying and
facilitating cooperation procedures.This is the premise on which all
conventions on ocquis-crimes are based. It is also the basic
philosophy of the Treaties (Title VI of the Treaty on European
Union)The jurisdictional basis for extraterritorial jurisdiction under
the ocquis instruments would be active personality (jurisdiction over
nationals) but not universal jurisdiction, although nothing would
prevent states from introducing this form of jurisdiction in a
(probably third pillar) EU instrument.
ERA - Forum
38
- 3 - 2001
The approach under the First Pillar, as far as the offences that are
the subject of this study are concerned, is the second one (15= I),
as the PIF.regulations on administrative sanctions for fraud offences
and supervision by OLAF are applicable throughout the territory of
the Union.
The CorpusJuris approach would extend this approach to criminal
offences. For offences against the financial interests of the European
Community, the rule would be 15= I. Accordingly, national
territories would remain what they are now, but for the purposes
of investigating, prosecuting and punishing EU-crimes, the whole EU
territory (i.e. the sum of these national territories) would be
considered as one single jurisdictional unit~~
states would still be
applying their national laws, in conjunction with the Corpus Jurisprovisions'~ this would mean that the jurisdictional basis for the
prosecution of crimes, committed outside the national territory
would be universal jurisdiction.
To date, no candidate member state in the study has laid down
the principle of European territoriality as it was envisaged by art. 18
of the CorpusJuris in its domestic legislation. Nor, as a matter of fact,
does any of the current member states. The question to be
examined in the present study is whether this principle of
"European territoriality" in art. 18 Corpus Juris could be received in
the legal systems of the candidate states, were the CorpusJuris to be
introduced. The answer to this question is positive. The reception
problems would concern the "operational side" of the principle of
European territoriality, i.e. the powers of investigating and
prosecuting (by investigative and prosecutorial authorities (supra,
Chapter 4)) Corpus Juris-crimes based on the principle of European
territoriality. The "jurisdiction side" of the European territoriality
principle would not be problematic. As far as (extraterritorial)
jurisdiction exercised by courts of law is concerned, European
territoriality would be compatible with the legislation of all
candidate member states.
The conclusion therefore is that all candidate states comply with
the provisions on extraterritorial jurisdiction of the current acquis.
If the principle of European territoriality were to be adopted in EU
legislation, implementation of this principle as far as the jurisdiction
of national courts is concerned in the candidate states does not
seem to face problems. It is true that, as in the current member
states, the exercise of operational powers of investigators and
prosecutors acting on the instructions of a European Public
Prosecutor would require major legislative or constitutional
changes (see supra, Chapter 4). But as far as the exercise of
jurisdiction (by national judges) is concerned, European
territoriality does not seem to raise problems of principle in the
candidate member states in the present study.
t06FinalReporton the first evaluationexercise- mutualassistancein criminalmatters

adoptedbythe Councilon 28 May2001,loc.cit. at 19.
107SeeWeyembergh,A.,"Lacoop6rationeurop6enneen mati6redejusticeet d'affaires
int~rieures: versun r66qu~libragedu couplelibert6-s~curit6?'~RevueBeigede Droit
lntematJonal2000,forthcoming..
108Article 18(I) of the Corpusjuris provides:"For the purposesof investigation,
prosecution,trial andexecutionof sentencesconcerningthe offencesset out above
(Articles I to 8),theterritoryof the MemberStatesofthe Unionconstitutesa single
legal area"~
109Art. 35 Corpusjuns runs as follows: Complementarityof national taw w~thregard to ~he
Cerpusjuris
I. In order to applyArticles t to 8, the rules defined in Articles 9 to 34 are
supplementedby nationaltaw,whenevernecessary.Thenationallawapplicableis that
relating to investigations,to prosecution,to judgementor to the executionof
sentences,dependingon the stagethe proceedingshavereached.
2. As a complementto Articles9 to t 6, onlythe provisionsof nationallaw more
favourableto the accusedpersonapply
ERA - Forum - 3 - 2001
(iii) European territoriality and the choice o f the forum

As an increasing number of international instruments oblige
states to enact legislation that allows them to prosecute crimes
extraterritorially, the situations where concurrent jurisdiction exists
will increase.The objective of a "European judicial area", whatever
be the form it will take (I 5 = 15 or 15 = I), creates a potential for
conflicts of jurisdiction in which more than one state will have
jurisdiction to try the same offender for the same crime.This is true
both for the classical "horizontal approach" in the acquisconventions (e.g. the PIF-convention, the conventions on
corruption and the framework decision on counterfeiting) and for
the "vertical approach" followed in the CorpusJuris.
Concurrent jurisdiction may give rise to problems after but also
before prosecutions against a given (group of) offender(s) for a given
(set of) (f)acts have been or are being brought.The first problem is
the problem of ne bis in idem, the second that of the choice of the
forum. The first problem has been much better addressed in the
acquis communautaire than the second one.
The ne his in idem-problem resulting from concurrent jurisdiction
of different states is well-known in the acquis: concurrent
jurisdiction creates a potential for consecutive prosecutions of the
same person for the same (f)act, i.e. after prosecutions have been
brought before a court of law and after this has led to a final
decision (conviction, acquittal, settlement, etc.). The acquis
communautaire is very clear on this point: ne bis in idem is a bar to
the transfer of criminal proceedings under the 1972 European
Convention on the transfer of criminal proceedings (art. 35) ''o and
to the execution of foreign criminal judgements under the 1970
European Convention on the International Validity of Criminal
Judgements (art. 53)"L Moreover, it is a bar to prosecution under
the Schengen convention (art. 54) "2. Last but not least, the 2000
Charter of Fundamental Rights of the European Union'" has given
a quasi-constitutional status to the ne bis in idem-principle in art. 50,
which guarantees the right not to be tried or punished twice in
criminal proceedings for the same offence. Nearly all candidate
states have ratified the 1972 Convention and three have ratified the
1970 Convention. Upon accession, they will be bound by the
Schengen Convention and the Charter.The compliance with the ne
bis in idem protection under the acquis will automatically follow.
The situation is different for the forum.choice-problem, for lack
of a clear acquis on the subject. The forum choice-problem that
flows from concurrent jurisdiction has indeed been less clearly
addressed: in which state should prosecutions be brought when
more than one state has jurisdiction to try the offence? In other
words, how to choose the competent forum in the case of
concurrent jurisdiction? A concomitant question is: who will be
responsible for the choice of the forum in a concrete case? This
problem is known in purely national criminal proceedings as well:
often, there will be a choice between different national fora that are
equally competent to try a particular case. In most states, this
choice is made by prosecutorial authorities, which make the forum
choice in the interests of a good administration of justice. This
choice may lead to the "concentration" of proceedings before one
trial court, instead of letting different, yet equally competent courts
of the same state try different parts of the same case.
Choosing between equally competent fora of different states is a
much further reaching decision, because the choice of the forum
will also determine the choice of the applicable law, even if parts of
the law have been harmonised.This is traditionally something to be
decided by the authorities of the states involved in an international
criminal cooperation proceeding. Under the 1972 Convention on
the transfer of proceedings in criminal matters, a set of criteria have
/
39

been elaborated to guide states in this choice (art. 8). They are
conceived for a typical "bilateral" situation involving a requesting
and a requested state. The criteria are discretionary and are not
based on a ranking in priority between the states involved.
In the future, there may be a need to develop these criteria
further and to adapt them to "multilateral situations" involving
more than two states. One can imagine trans.European fraud or
organised crime cases committed on the territories of several
member states where, at the end of trans-European investigations,
prosecutions need to be "concentrated" in one particular state.
This problem is likely to arise both in a "horizontal" and in a
"vertical" system. In a horizontal system, such concentration may
require the authorities of the states who were initially involved in
the investigations but who will not prosecute the case to transfer
the proceedings to the state where the case will be prosecuted.A
new institution where decisions of this kind are likely to be made
in the future is Eurojust. In the vertical system of the CorpusJuris, the
European Public Prosecutor would take this decision.
As long as there is no full harmonisation of the criminal justice
systems of the member states, the choice of the forum is likely to
have an impact on all the parties in a criminal proceeding: police,
prosecutors, defendants, victims. There will be a need for further
development of the criteria guiding the choice of the forum, and
also for a judicial control of the choice, if it is left, as it is today, to
the (prosecutorial) authorities of States (in a horizontal model) or
to the European Public Prosecutor (in a vertical model).The forum
choice should be in the interests of a fair and efficient
administration of justice.To avoid duplication, prosecutions should
be concentrated in one state only and individuals should not face
different parts of the same case in different trial courts in different
member states. For Corpus juris-crimes, criteria have been provided
in art. 26~4.These criteria could be further elaborated in policy
guidelines, to be adopted by Eurojust or the European Public
Prosecutor and which would further build on the Council of
Europe convention on mutual assistance in criminal matters and on
art. 26 (2) CorpusJuris.
In our view, the choice of the forum should be decided by Eurojust
or, if the CorpusJuris were to be introduced, by the European Public
Prosecutor, not by the police. It is therefore important that Eurojust
(and the European Public Prosecutor) should oversee the activities
of the police. To protect the parties (defendants, victims) against
forum shopping, there may well be a need for a judicial control of the
choice of the forum on a European level, for example by the
European Court of Justice ~s. One proposal could be to create a
I I 0 European Convention on theTransfer of Proceedings in Criminal Matters, Strasbourg,
15 May 1972, European Treaty Series No. 73.
I I I European Convention on the International Validlty of Criminal Judgments,The Hague,
28 May 1970, European Treaty Series No. 70.
I t2Convention of 19 june 1990, applying the Schengen Agreement of 14 june 1985
between the Governments of the States of the Benetux Economic Union, the Federal
Republic of Germany and the French Republic, on the gradual abolition of checks at
their common borders, International Legal Matenals, 199 i, 84.
I 13 Charter of Fundamental Rights of the European Union, O~ciat journal No. C 364,
18,12,2000, p. I.
114Article 26(2) Corpusjuris states the following: "Each case is judged in the Member
State which seems appropriate in the interests of efficient administration of justice,
any conflict of jurisdiction being settled according to the rules set out hereafter
(Article 28).The principal criteria for the choice of jurisdiction are as follows:
(a) the State where the greater part of the evidence is found;
(b) the State of residence or of nationality of the accused (or the principal persons
accused);
(c) the State where the economic impac~ of the offence is the greatest."
t 15Van den Wyngaert, C. "Corpus juns, parquet europ#en et iuge national: vers une
chambre pr~liminaire europeenneT', in De Kerchove, O. and Weyembergh, A. (eds.),
Vers un espacejudiciaire p~naI europ6en, Brussel, Editions de l'Universit~ de 8ruxelfes,
2000, 13t-t38; Delmas-Marty, M. "Combatting fraud - Necessity, legr~imacy and
feasability of the CorpusJuris',Common MarC<atLaw Review2000, 247-256;Van Gerven,
V~, "Constitutional conditions for a Public Prosecutor's Office at the European level",
EuropeanJournal of Crime, Criminal Law and Criminaljustice 2000. 296-3 t 8.

chamber of this Court that would function as a European

Preliminary Chamber, following the example of pre-trial chambers
in international criminal courts such as the International Criminal
Tribunal for the Former Yugoslavia''6 or the (future) Permanent
International Criminal Court "7. This Preliminary Chamber would
oversee the choice of the forum. In our view, this would be a nihil
obstat-procedure, not a fiat-procedure: only if one of the parties
would want to challenge the forum choice of the prosecutor
(Eurojust or European Public Prosecutor) would there be a decision
of the court.This task could be part of a more general function to
be attributed to this court, i.e. the task of committing cases for trial
and of validating settlement agreements (see also
Recommendations 10 and 12).
We believe that a European Preliminary Chamber is a necessary
complement to concurrent jurisdiction in the European legal area
and is even a minimum requirement for judicial integration in a
Union that will soon count more than twenty member states.We
therefore think that this is a matter for consideration at the Laeken
Summit (see Proposal III).
2. E X T R A D I T I O N
The most important instruments of the acquis by which to assess
the legislations in the candidate member states on the subject of
extradition are the European Convention on Extradition (1957) and its
additional Protocols (1975 and 1978). In addition to the Council of
Europe instruments, the acquis on extradition is composed of the
1990 Schengen-Convention, 1995 EU Convention on Simplified
Extradition Procedures between the Member States of the EU, the
1996 Convention relating to Extradition between the Member States of
the EU ''a and the 1995 Convention on the Protection of the
Communities' Financial Interests ("PIF"-convention).

All candidate states in the study have domestic legislation on
extradition and are parties to the European Convention on
Extradition and its additional protocols. By the time of accession,
they will be able to accede to the EU instruments and will have to
comply with the more flexible extradition conditions and
procedures that have been incorporated in these instruments.
Due to time restraints, the number of evaluation criteria for the
purposes of this part of the study could not be developed with the
same depth and detail as in other evaluation studies, for example
the first evaluation exercise on mutual assistance by the Council
(May 2001). The present sub-chapter focuses on two evaluation
criteria: conditions/obstacles to extradition and extradition
procedures.
(i) Conditions~obstacles to extradition
The measurement yardstick for this part of the study is whether

legislation of the state in question allows extradition under the
conditions set forth in the instruments that constitute the acquis.
Overall, extradition laws in the candidate states comply with the
acquis.There are, however, a number of specific problems.
The extradition of nationals is problematic because some candidate
states have given a constitutional status to the principle that
nationals cannot be extradited. By way of compensation, these
states all allow for the prosecution of nationals for crimes
committed abroad (under the active personality principle). This
would be sufficient to ensure compliance with art. 5 of the 1995
PIF-Convention (aut dedere aut judicare for "PIF-offences"
committed by nationals). It does not, however, resolve the problem
of extradition of nationals under art. 7 of the 1996 EU Extradition
Convention, which creates an obligation to extradite nationals for
all extraditable offences (not only PIF-offences).
ERA - Forum - 3 - 2001
4O
The horizontal report notes a number of obstacles that may be

problematic for specific countries in the study. For example, the
probable cause-requirement in the Slovenian Code of Criminal
Procedure may be a serious obstacle to extradition, and the same
can be said about the Polish Code of Criminal Procedure, which
states that extradition is not admissible if it would contravene
Polish law, and the general ordre public-exception to cooperation in
Hungary where extradition can be refused if it would prejudice the
sovereignty, security or public order of the Republic of Hungary.
(ii) Extradition pracedure
The domestic decision-making process of extradition is a matter

for each state to determine in its domestic legislation and is not
governed as such by the acquis communautaire, except for the
points mentioned below. As in the current member states,
extradition procedures in the candidate states are a combined
judicial/political decision in which judicial authorities usually decide
about the admissibility of extradition, and political authorities (the
Minister of Justice) usually have the final say about whether or not
extradition will be granted.
An important acquis exists in relation to the fields of provisional
arrest, simplified extradition and the transmission of extradition
requests. Provisional arrest does not seem problematic, and nor is
transmission of extradition requests via central authorities. In all
candidate member states in the study, Ministries of Justice function
as central contact points.
Simplified extradition (based on the consent of the requested
person), on the contrary, may still need to be further addressed in
the national legislation of the candidate states. This form of
surrender is of crucial importance for day-to-clay practice and
probably accounts for the great majority of extradition cases in
certain member states, especially in border areas. Most national
reports for the candidate member states do not mention the
possibility of simplified extradition, though one country (Estonia)
mentions that there is no need for national legislation on this point
in view of the possibility to give direct effect to conventions on
international cooperation in criminal matters.
(iii) European arrest warrants as a substitute for extradition?

In the present acquis, "European arrest warrants" exist under art.
95 of the Schengen-convention: a person named in the Schengen
Information System can be arrested throughout the Schengen-area
on the basis of a notice emanating from the judicial authority of the
requesting Contracting Party. This warrant is, however, only
applicable to the provisional arrest for the purposes of extradition
and needs to be followed by a formal extradition procedure in
which political authorities have their say.
Recent developments in the acquis indicate a willingness on the
part of the current EU member states, not only to recognise
provisional arrest warrants rendered in other member states, but
to substitute extradition altogether by automatically recognizing
judicial warrants issued in other member states depriving suspects
or convicts of their liberty. Conditions upon extradition and
grounds of refusal would not be applicable to this form of automatic
surrender.
16Rules of Procedureand Evidenceof the InternationalCriminalTribunalfor the
FormerYugoslavia,The Hague,I I February1994,latestversionto be consultedat:
h_~.p://www,un,o~/icty/basiclrpe/IT32rev20con.btm.
17Vanden Wyngaert,C,, "Corpusjuris, parqueteurop~enet juge national.Vers une
chambrepr6liminaireeurop~enne?',Agonnr,23, 1999.
18Conventionrelatingto Extraditionbetweenthe MemberStatesof the European
Union,Brussels,27 September1996,O[~icialJournalNo.C 313,23.10.1996,p. I I.
ERA - Forum
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- 3 - 2001
This development is new, and flows directly from the Tampere

milestones, which considered that formal extradition procedures
between member states should be abolished in the case of
convicted persons fleeing from justice, and recommended the use
of fast track extradition procedures (w
Certain member states are
already moving in this direction, unilaterally'", or in a bilateral way,
providing automatic surrender for a number of specified crimes
(terrorism, drug trafficking, trafficking in arms and human beings and
sexual abuse of children)'2~
European Commission is preparing
a proposal for a framework decision on the subject 'z'.
In the same way, the European arrest warrant under the Corpus
Juris would replace extradition: it would be more than a provisional
detention order, but be a real detention on remand.The transfer of
arrested persons between member states, whose territories would
constitute one single European jurisdictional area, would not be
based on the principles of extradition (and the concomitant
conditions (e.g. double criminality) or obstacles (e.g. the nationality
exception, the political offence exception, the exception for fiscal
offences)). For that reason, the term "extradition" would be very
inappropriate to describe the process. The better term would
probably be "surrender" or "backing of warrants".
Most candidate states would have difficulties with the European
arrest warrant as proposed by the CorpusJuris.The main objection
against the European arrest warrant in all candidate states is that it
would result in the automatic transfer of nationals, which would
conflict with the nationality exception to extradition that exists in
most of these states.This objection was also raised in the study on
the compatibility of the Corpus Juris with the domestic systems in
the current member states, where many national reporters
expressed hesitations as to the compatibility of the arrest warrant
in art. 25ter with the principle of non-extradition of nationals'2z.
From a legal point of view, the answer to these objections is
probably easier than from a political point of view.
The legal answer is that the European arrest warrant in art.25ter
is no extradition and that therefore the current conditions and
obstacles to extradition, including the rule against the extradition of
nationals, would be inapplicable anyway.The relationship between
the European Public Prosecutor and national prosecution services
would be of a "vertical" nature, more of the kind of the relationship
between national prosecution services and the prosecutor of the
inter-national criminal court. Moreover, even the classic
"horizontal" (inter-state) co-operation scheme shows an increasing
acceptance of the extradition of nationals, and the prohibition
against this seems to disappear in the European Union. Some
current EU-member states, including Germany, already have
changed their constitution to allow extradition of their nationals.
The 1996 EU convention on extradition, signed but not yet ratified
by the current member states, shows a willingness to depart from
a principle that has existed for more than a century in most
member states but which is increasingly considered to be an
anachronism in view of the concept of Citizenship of the European
Union now enshrined in art. 2 of the Treaty on European Union and
Part Two of the EC Treaty. In addition, from a strictly legal point of
view, the arrest warrant under art. 25ter would be "Strasbourg
compatible" as was discussed elsewhere in this Study (supra,
Chapter 6).
From a political point of view, the answer may be different. It is,
however, important not to confuse political and legal questions.The
political premise of the European arrest warrant, both under art. 95
of the Schengen-Convention and under art. 25ter CorpusJuris is that
of an area composed of states with mutual confidence in each
41

other's legal systems. Compatibility with general human rights

standards ("Strasbourg-proofness", see supra, Chapter 6 and
Recommendation 13) is, quite obviously, a basic requirement for
this confidence. From a general human rights perspective,
extradition as a formal process of surrendering defendants between
states is not a requirement if the human rights of the surrendered
person are protected in the state to which he is transferred. Given
the fact that all present EU member states and all candidate states
are parties to the European Convention of Human Rights, and have
accepted the right of individual application, "Strasbourgcompatibility" of substituting extradition for European arrest
warrants should not be problematic. In addition, there is the
Charter of Fundamental Rights which now clearly states that
institutions and bodies of the Union are bound by it (article 5t).
This article would be applicable to the European Public Prosecutor,
if he were to be introduced in the European legal order.
In the first years of application of the Schengen Information
System, there was a great political reluctance towards the European
arrest warrant in art.95 and political opinion in some quarters was
extremely negative and sceptical. By now, however, the system
seems to function in a satisfactory way, and those states who were
reluctant to join it have now agrreed to do so. Schengen was
integrated into the EU structures by the Treaty of Amsterdam.The
same evolution may take place in the case of the European arrest
warrants now proposed, whether it be the more modest variant of
the European Commission, or the more "audacious" variant of the
CorpusJuris.
Paradoxically, European arrest warrants would not only increase
the risk of apprehension of defendants, but could also have another
positive effect. It is likely that bail will be more easily granted, as bail
jumpers could be arrested through-out the area. Some of the
legitimate concerns of organisations such as Fair trials abroad '~3, a
non-governmental organisation created in 1994, could possible be
eased, and Eurobail could become concomitant to the European
arrest warrant t2~.
Turning to the candidate states, the conclusion is the following.
The reluctance and constitutional objections against the Corpus
Juris-style arrest warrant are the same as those that exist in the
current member states as was shown in the previous Follow-up
Study '~s.Politically, reception would be as difficult as in the current
member states. Legally, reception would be less difficult, as all
candidate states (as well as the current member states) have
domestic legislation on detention on remand. Problems to be
addressed would be the judicial control on pre-trial arrests, as
discussed earlier in this study (supra, Chapter 6).
119Seefor exampleHomeOffice,The Law on Ex~aditian:A Review,discussionpaper,

March2001,EPSCa~homeoffice.gsLgov.ulThis
~ paperdiscussesthe possibilityof using
fasttrackextraditionproceduresbetweenthe UKandmemberstatesof the EU.
120Seefor examplethe drafttreatybetweenSpainand Italy:Trait~entrele Royaume
d'Espagneet ia R6publiqueItaliennepourla poursuitede crimeset d61itsgravesen
~vitantl'extraditiondansun espacecommunde justice,Rome,28 November2000.
121Extradition(DiscussionPaper),EuropeanCommission,Directorate-GeneralJustice
and HomeAffairs,Brussels,15March200I, JAIIBI31TLD (2001).
122Delmas-Marty,M. andVervaele,J,A.E,(eds,),Theimplementationof the CorpusJuris in
the Member States-Lo Mise en Oeuvredu CorpusJuris dons les EtLatsMembres,op. dr.
123Seethe reportof StephenJacobi,quotedby M. Detmas-Martyin "Lesd6fisdu droit
p6naleurop6en',typedmanuscript,1999,p. 3.
t24Forexample,the practiceof"theYugoslavia-tribunatin the Hagueindicatesthatbailis
more easilygranted if there is a reasonableexpectationthat the statewherethe
releaseddefendantresideswilt surrenderthis person if he or she jumps bail For
example,whenthe ICTYprovisionallyreleasedMrs.Plavscic.oneof the elementswas
thatYugoslaviawasnowcooperatingwiththeTribunaLSee:WeeklyUpdateNo~ 186,
31 August 2001, Krajisnik and Plavsic Case ("Bosnia and Herzegovina"),
httD:Hwww.un.or_~/icty/latest/latestdev:~.hl;m,
125Delmas-Mar~M.andVervaele,J.A.E.(eds,),0p,cit.

3. M U T U A L A S S I S T A N C E I N C R I M I N A L M A T T E R S
The acquis communautaire on the subject of mutual assistance in
criminal matters is the 1959 Council of Europe Convention on
mutual assistance and the 1978 Additional Protocol thereto, and the
2000 EU Convention on the same subject. By the time of accession,
there will be an additional protocol to the latter conventionJ2~.AII
candidate member states in the study are parties to the 1959
European Convention on Mutual Assistance in Criminal Matters ~27
and the 1978 additional protocol thereto (with the exception of
Romania).AII but one (Estonia) have domestic legislation on mutual
assistance in criminal matters.
The Evaluation of mutual assistance by the Council (May 2001)
reveals that:
" [...] in general mutual assistancedoes not operate as badly as it is
reputed to do. In the field of drugs or serious offences under
ordinary criminal law, a great majority of the practitioners
interviewed consider that mutual assistanceoperates efficiently and
to the satisfaction of practitioners. Moreover, the persons involved in
mutual assistance are devoted and conscientious practitioners who
seek to assist foreign authorities in the best manner possible,
sometimes under difficult material conditions.This finding, while not
invalidating the criticism of the current operation of mutual
assistance,does moderate it".
The report goes on to identify a whole series of problems, some
of which are very relevant for the protection of the financial
interests of the European Union ~8.
Although the evaluation did not yet include the candidate states,
the recommendations address practical problems arising from the
acquis and are therefore relevant for the assessment in the present
study.
(i) Conditions for mutual assistance

Overall, the candidate states seem to comply with the acquisrequirements on mutual assistance. They have ratified the basic
instruments and provided domestic legislation.
There are, however, a number of problems. The exception for
fiscal offences is still used in Romania, which may be an obstacle for
mutual assistance for the type of crimes that are the subject of this
study. In Romania and SIovenia, mutual assistance is, in principle, only
available for extraditable offences. In combination with the high
threshold for extradition crimes in Romania (2 years), this seems to
restrict the possibilities for mutual assistance considerably.Another
important obstacle is the 0rdre public-clause in Bulgaria, Hungary
and Romania.
Double criminality is a basis on which Estonia, Lithuania, Hungary
and Poland can refuse mutual assistance.Although this is not per se
incompatible with the 1959 Convention, the Schengen-Convention
nevertheless excludes double criminality as a condition of mutual
assistance in the case of VAT and customs & excises offences (art.
50) and in the case of letters rogatory aiming at the execution of
measures of search and seizure (art. 51 ). Candidate member states
will have to adapt their legislation on this point on the moment of
accession. As for the current member states, double criminality
remains a problem to be further addressed, as was also emphasised
by the Council in its first evaluation exercise '~.
Candidate states will also have to implement the 2000 EU
Convention on Mutuat Assistance in Criminal Matters~3~
convention
will require further efforts of implementation in the candidate
states (as in the current member states). Some states have already
anticipated (parts of) the 2000 EU Convention.The importance of
this Convention has also been emphasised by the Council which, in
42
ERA.
Forum - 3 - 2001
its first recommendation resulting from its first evaluation exercise

on mutual assistance, states that special attention should be given
to its early ratification.
By the time of accession, the additional protocol to the 2000
Convention will probably be finalised. This Protocol limits the
application of double criminality to mutual assistance requests for
search or seizure, excludes the application of banking secrecy as a
ground to refuse mutual assistance and further limits the scope of
the fiscal offence exception.
(ii) Transmission of requests

In the pre-history of mutual assistance in criminal matters, mutual
assistance requests, like extradition requests, were transmitted
through diplomatic channels. In recent times, communication
between Ministries of Justice has become the rule.A more recent
development is towards direct communication between judicial
authorities, not only in the sending of requests, but also in the
answering of requests.
Under the current instruments on mutual assistance, indirect
transmission of requests for mutual assistance is done via the
Ministry of Justice except in the case of urgency where the
transmission can be direct. Direct transmission between judicial
authorities will become the rule under the 2000 EU Convention on
mutual assistance (as it is already under the Schengen-convention
(art. 53)). Many candidate member states in the study do not allow
direct transmission without the intervention of the Ministry of
Justice.This possibility must however be provided for by the time of
accession.
An important factor for consideration in this process is the
observation of the Council in the First Evaluation Report:
"Against the move towards decentralisation (from central units
towards direct contacts between judicial authorities) must be
weighed the fact that reductions of the capability of central authority
could havean influence on the effectivenessof mutual legal assistance
with countries that are not member states.The central authorities
could also play an important role in assisting candidate countries in
the process of developing judicial cooperation in criminal matters
[...],,,3,.
Direct communication between states and community
institutions such as OLAF and Europol (First orThird Pillar) is not
envisaged by the classical conventions on mutual assistance in
criminal matters (which are based on inter-state cooperation), even
though using them as a legal basis for such communication is not
excluded. It is, however, provided in the first Pillar instruments (PIFregulations).
The Second Protocol to the PIF-Convention has laid down a
provision on cooperation between member states themselves and
between them and OLAF (art.7). Some candidate member states in
the study already allow direct communication with EU institutions
on the basis of the 1959 Convention: the national reports for
Estonia and Romania mention art.15 para.2 as the legal basis for
contacts between their Ministries or judicial contact points and
OLAF and Europol.
126Draft Protocolto the 2000 Conventionon Co-operation in Criminal Matters
betweenthe MemberStatesof the EuropeanUnion,Councilof the EuropeanUnion,
23 March2001,Doc,COPEN 12,
127EuropeanConventionon MutualAssistancein CriminalMatters,Strasbourg,20April
t959,EuropeanTreatySeriesNo, 30,
I28 Lac.c/C,p.t 5.
129SeeRecommendation4,on p.19of the FinalReportof the Council,toc.cit
130EU Conventionon MutualAssistancein CriminaJMattersbetweenthe Member
Statesof the EuropeanUnion,Brussels,29 May 2000,O~aafJournalNo. C 197,
t2.07.2000,p.I,
131Loc.cir.,at 22.
ERA
- Forum - 3 - 2001
/
43

4.TRANSFER OF CRIMINAL PROCEEDINGS AND

TRANSFER OF EXECUTION OF SENTENCES
Many, but not all candidate member states in the study have
ratified the 1972 Council of Europe Convention on the transfer of
criminal proceedings. Some, but not all have adopted domestic
legislation on the subject. Some have ratified the 1970 Convention
on the International Validity of Criminal Judgements '~. The
ratification rate of these conventions in the current member states,
especially the 1970 Convention, is also very poor and few of the
current member states have adopted legislation that allows them to
enforce foreign criminal judgements. Comparing the candidate
member states in the present study, the general picture of
ratifications and domestic legislation seems not to be so different
from that in the current member states.
accompanied by a certificate which would make them automatically

enforceable throughout the Union.The state where the order was
given would be the issuing state, the state where the order is to be
executed, would be the executing or enforcing state. These would
become substitutes for the current nor3ons of requesting and
requested states in classic "horizontal" international criminal
cooperation. There would be no condition of double criminality
(only a list of offences to which the framework decision would
apply) and exceptions (fiscal exception, banking secrecy, ordre
public) that exist in the framework of mutual assistance would thus
not be applicable. Another example is the proposed Frame-work
(i) Direct e n f o r c e m e n t under the acquis
point of direct enforcement because the assessment yardstick is

undergoing fundamental changes. It is therefore of crucial
importance for the current member states to comply with their
own Programme of measures to implement the principle of mutual
recognition of decisions in criminal matters, listing the priorities that
should be met in order to implement the principle of mutual
recognition, as decided by the Tampere Council (point 37 of the
Conclusions)'3~.The Commission's Scoreboard to review the progress
on the creation of an area of "Freedom, Security and Justice" in the
European Union further monitors the progress that is being made'3'.
Classical instruments on mutual cooperation do not prescribe

direct enforcement of pre-trial coercive orders. Usually, some form
of exequatur, decided by a national court in the state where the
order will be enforced, is required before a coercive measure
decided abroad can be executed. In addition possibilities to appeal
the order often exist. This is currently the case for search and
seizure, for freezing of assets,for telephone taps etc. It causes much
delay and is often problematic due to the operation of traditional
conditions (e.g. double criminality) and exceptions (i.e. the fiscal
exception, banking secrecy etc.) to cooperation~33.Theenforcement
of final judgements is even more problematic than the enforcement
of pre-trial orders: many states lack legislation to allow for such
enforcement.The systems in the candidate states seem, overall, to
converge with the systems that exist in the current member states
on this point.The difficulties that exist in the current member states
are likely to arise in the candidate states as welt.
The Tampere milestones have labelled mutual recognition of
judgements and decisions throughout the Union as the cornerstone
of judicial cooperation. They call for automatic and direct
recognition of judicial decisions, without the typical conditions
(double criminality), exceptions and procedures (conversion of the
sentence rendered abroad) that exist today. In the civil field, this can
be more easily achieved since the EU has the power to legislate in
the form of regulations that are directly applicable in all member
states. For example, the Brussels-Convention'~ will be substituted
by a regulation on the same subject 'ss.Such a radical "reformatting"
of old conventions in the field of the criminal law is not possible as
yet. Much is expected of the new instrument of the "framework
decision" under art.33 (2)b as a substitute for international
conventions that need to go through the process of ratification.
Even though frame-work decisions are not directly effective in the
member states, states would be obliged to implement them.
Moreover, framework decisions could be, indirectly, justiciable
before the European Court of Justice under art. 35 TEU via the
mechanism of preliminary rulings. It is, at this stage, not clear
whether the next framework decisions that are currently proposed
will be substitutes for the old conventions, or whether they will
only be complements. As a result, the development of the future
acquis on this point is uncertain.
The acquis on the enforcement of judicial orders (pre-trial and
other orders) is moving rapidly. An example of initiative that is
under way is the Proposal for a framework decision on the enforcement
of decisions ordering the freezing of assets t36. According to the
proposal, freezing orders rendered in respect of certain acquiscrimes (EC-fraud, money laundering and corruption) would be
Decision on the application of the principle of mutual recognition of

financial penalties "7.
As the acquis on direct enforcement is in a state of transition, it
is impossible to assess the legislation of the candidate states on the
(ii) Direct enforcement under the Corpus Juris

The Corpus Juris would also be based on a system of direct
enforcement.The difference between it and the currently proposed
framework decisions mentioned above is chat Corpus Juris would
only apply to decisions of national judges (judges of freedoms) that
have been rendered on the request of the European Public
Prosecutor, not to all judicial orders. From that perspective, the
Corpus Juris seems to be more modest than the current initiatives.
It would also have the advantage of transparency. Yet, the more
ambitious part of the proposal is, quire obviously, that the European
Public Prosecutor would be the steering mechanism behind the
application of such coercive measures. Moreover, the European
Public Prosecutor would have powers to direct and monitor
European investigation services (OLAF and, if the Euro would be
added to the CorpusJuris-offences, Europol).
Reception of the CorpusJuris on this point by the candidate states
would depend on their acceptance of the European Public
Prosecutor (see above, Chapter 4), which is more a political than a
132EuropeanConventionon the InternationalValidityof Criminaljudgments.TheHague,
28 May t970,EuropeanTreatySeriesNo. 70.
133FinalReport,Ioc.at. (footnote97), 17-22.
134Convention on Jurisdiction and the Enforcementof Judgments in Civil and
CommercialMatters,Brussels,27 September1968,
135CouncilRegulation(EC)No 44/2001of 22 December2000on jurisdictionandthe
recognitionand enforcementof judgmentsin civil and commercialmatters.O~'~cial
journal No, L 12, 16.1,200I, p, I,
1361nitiativeby"the Governmentsof the FrenchRepublic,the Kingdomof Swedenand
the Kingdomof Belgiumfor the adoptionby the Councilof a FrameworkDecision
on the executionin the EuropeanUnionof orders freezingassetsor evidence,
Brussels,2 February200I, 5126/0I.
137Proposalof the FrenchRepublic,the Kingdomof Swedenandthe UnitedKingdom
for the adoptionbythe Councilof a draftFrameworkDecisiononthe applicationof
the principleof mutualrecognitionto financialpenalties,Brussels I2 July 2001,
I0710/01,COPEN37.
138O~c/otjoumatNo, C 12.15.01.200t, p. I0.
139CommunicationfromThe Commissionto the Councilandthe EuropeanParliament.
BiannualUpdateof the Scoreboardto ReviewProgresson the Creationof anArea
of "Freedom,SecurityAnd Justice"in the EuropeanUnion (First Half of 2001),
Brussels, 23 May 2001, CAM(2001) 278 final, an up-to-dateversion of the
Scoreboard can also be consulted at the fo~lowing location:
http:I/europa.eu.int/scadoluslle~len/Ivbll33121
,hlm.
The Protection of the Financial interests

legal question. In the same way, whether or not to accept direct

enforcement is a political, not a legal question, not only for the
CarpusJuris but also for the proposals that are now being made to
modify the aquis (supra, (i)).
5. S E C R E C Y O F I N V E S T I G A T I O N S : E X C H A N G E
INFORMATION AND DATAPROTECTION
E R A - Forum - 3 - 2001
44
OF
(i) Exchange of information

An important obstacle hindering investigations of transnational
frauds is that some national criminal justice systems do not allow
the exchange of information with foreign investigation authorities
or with the European Commission or OLAE Sometimes this
exchange can be achieved only using the formal procedure of
letters rogatory. Some candidate states allow information
exchanges with OLAE in general or on the grounds of mutual
assistance agreements only. One state excludes it completely.
(ii) Data protection

All but two candidate states report the existence of domestic
legislation in the field of data protection. Only Bulgaria and Romania
have no legislation on the subject.
The acquis comrnunautaire on data protection is complex and
complicated because of its cross-pillar nature. Article 286 Treaty
European Union states that the Community acts on the protection
of individuals with regard to the processing of individual data and
the free processing of such data shall apply to the institutions and
bodies set up by the Treaty or set up on the basis of the Treaty.An
independent supervisory body must be established to monitor the
application of this legislation.The Charter of Fundamental Rights and
Freedoms,adopted in Nice in December 2000, has included the right
to the protection of personal data in the catalogue of fundamental
rights (art.8).
Data-protection rules in the first pillar are Directive No. 95/46"o
and Regulation (EC) No. 45/2001;the relevant third pillar-rule is art.
8 of the Second Additional Protocol to the PIF-Convention. Both
are applicable to OLAE New first pillar legislation is being drafted "~.
For the present, the Council af Europe Convention for the Protection
of Individuals with regard to Automatic Processing of Personal Data

(198 t)"3 remains the most important instrument of the acquis.The
European Community will adhere to this convention.
Data protection has been called a legal minefield. One of the
major problems in the area of EC-fraud is the "passage rite", that is
the transfer of data collected under a First Pillar instrument to a
judicial proceeding: First Pillar data may become Third Pillar data
with all the implications that this passage may have for the subjects
of such data. Here too, more clarity is required about the role of
OLAE Much will depend on whether OLAF will be mainly an
investigative authority, or whether it will also have prosecutorial
features~.
(iii) Information exchange and data protection under the

Corpus Juris
The complexity of the acquis communautaire on this subject
results from the "constitutional environment" in which the rules
are developing: rules on administrative enforcement can be
developed with the pace that is inherent to First Pillar instruments,
whereas rules on judicial cooperation are developed with the
slowness that is typical for Third Pillar instruments. In addition,
there is the complexity of the Schengen Information System.
A vertical model such as the Corpus Juris would have the
advantage of simplicity and clarity. Data collection would be done
under the responsibility of the European Public Prosecutor and

investigative authorities (national and European) would be bound to
cooperate with the European Public Prosecutor.
The problem of the "passage rite" between administrative
enquiries and judicial enquiries would need to be further addressed,
also in the vertical model of the Corpus Juris. Rules should be
developed, not only to determine how the passage rite must occur,
but also under whose control. Both the European Public Prosecutor
(vertical model) and Eurojust (horizontal model) could be in charge
of overseeing the "passage" and of monitoring investigative
authorities in the process. Should there also be a judicial control of
this decision? This control would exist at least at the trial stage,
when the case is brought for trial before (national) courts: courts
would, depending on their legal system, be able to exclude evidence
obtained in violation of, for example,the right to silence. Should this
control already exist at an earlier stage, during the pre-trial
proceedings?
As the provisions of the Charter of Fundamental Rights and
Freedoms are addressed to the institutions and bodies of the Union
and to the Member states when they are implementing Union law
(art. 5 I), art. 8 will be of crucial importance for OLAF and member
states cooperating with OLAE If a European Public Prosecutor
were introduced into the EU institutional system, this European
Public Prosecutor would, quite obviously, be bound by the Charter.
Much will depend on the "justiciability" of the Charter, that is the
question of whether and how the European Court of Justice will
apply its provisions.

(i) The horizontal model
On the subject of extraterritorial jurisdiction, all states comply with
the acquis communautaire that exists on the subject.The concept of
European territoriality under the Carpus Juris would not meet with
obstacles of reception in the candidate states.The acquis itself needs
further clarification on the choice of the forum in the case of
concurrent jurisdiction, in order to prevent forum shopping by the
public prosecutor or, worse, by the police.
As far as extrad~on is concerned, a major obstacle seems to be
the non-extradition of nationals, which is considered as
fundamental in some candidate states. Other obstacles are that not
all candidate states seem to be ready for direct transmission of
requests and simplified extradition.These procedural forms, which
are essential for day-to-day practice, will need to be available in the
candidate states upon accession.
On the subject of mutual assistance, the situation in candidate
states seems, overall, to be quite satisfactory, leaving aside a number
of problems that exist in individual candidate states and that have
been specifically mentioned in the horizontal report. Like the
current member states, they will have to implement the 2000 EU
Convention on mutual assistance and to make sure that direct
contacts with foreign judicial authorities are possible.
140ECDirectiveNo.95/46onthe Protectionof Individualswithregardto the Processing
of PersonalDataand on the FreeMovementof such Data,Brussels,24 October
1995,O~cialJournalNo, L 28I, 23,I I, 1995,p.3I.
141Regulation(EC)No.45/2001of the EuropeanParliamentand of the Councilon the
protection of individualswith regardto the processingof personaldata by the
Communityinstitutionsand bodieson the free movementof such data, O~cial
JournalNo. L 8/I of 12January200t.
142SeeVfhite,S,,"Dataprotectionandthe protectionof the financialinterests",Agonhr.
28 (November2000).
143Conventionfor the Protectionof Individualswith regardto AutomaticProcessingof
PersonalData,Strasbourg,28January198f, EuropeanTreatySeriesNo. I08,
t44White, S, /ac. tit., p. 2 and 5, See alsoVervaeleand Klip,Administratieveen
strafrechtelijkesamenwerkinginzakefraudebestrijdingtussenjustitieleen bestuurfijke
instantiesvan de EU-lidstaten,Eindrapport,WODC, 2001,323p,
E R A - F o r u m . 3 - 2001
In the fields of transfer of criminal proceedings and execution of

foreign criminal sentences, the acquis itself is in a state of transition.
Direct enforcement is on the political agenda but it remains to be
seen how it will be elaborated in the various proposals that are
now being introduced in the European Union. It is therefore
essential that the Tampere milestones be implemented by the
current member states in order to allow candidate states to adjust
themselves to the acquis communautaire by the time of accession.
In concluding Chapter 10 (horizontal model), the following
recommendations are formulated.
acquis-conventions on international cooperation in criminal matters

In particular, the problems of the nationality exception to
extradition and the obstacles to mutual assistance(double criminality
for home searches,0rdre public clause) should be addressed.Simplified
extradition should be introduced and direct communication between
judicial authorities should be rendered possible.
Due regard should be given to the Recommendations arising
from the first evaluation exercise on mutual assistance in criminal
matters by the Council (28 May 2001).
Recommendation 2 I
EU member states should themselves comply with the priorities

they set in the Programme of measures to implement the principle
of mutual recognition of decisions in criminal matters (24
November 2000) and proceed to ratification and implementation of
the acquis-instruments that have been adopted.They should set an
example for the candidate states (see also Proposal I).
(ii) Relaunching the vertical model of judicial integration
Judicial integration will be a natural and necessary complement of
further economic integration. Further thought should be given to
the minimum requirements for this integration. Integration in the
field of justice and home affairs should not be limited to integration
between investigative authorities only. Proposals III and IV set forth
minimum requirements for judicial integration in Europe.
Mere coordination between investigatorial and prosecutorial
efforts of member states is not sufficient to protect the financial
interests of the European Community. The notion of European
territoriality for the purposes of investigating, prosecuting and
punishing offences against the financial interests of the European
Community must be further examined.The CorpusJuris approach of
one single jurisdictional unit for crimes against the European
Community (15=1) is to be preferred over the approach of
achieving better coordination between 15 territories that are
considered as separate jurisdictional units (15= 15).
In addition, there is a need for a judicial spokesperson vis-a-vis
third states.This need arises, not only in respect of EU crimes in the
narrow sense, but also, for example, for the offence of
counterfeiting the Euro (see Recommendation 4)~45.The European
Public Prosecutor would be more appropriate for this function than
a mere coordination unit like Eurojust. As an institution of the
European Union, the European Public Prosecutor would be
accountable under art. 51 of the Charter of Fundamental Rights and
Freedoms in the European Union (2000).
In conclusion, we propose the reconsideration by the European
Council summit in Laeken (December 2001) of the creation of a
European Public Prosecutor for financial crimes against the
European Community (see Proposal II, infra p. 135).

45
CONCLUDING
CHAPTER
The objective of this study was to assess the "state of

preparation" for accession in the candidate states in the study on
one specific point: the protection of the financial interests of the
European Communities. The first criterion for measurement was
the acquis communautaire, the second the Corpus Juris.
For the purposes of this study, all experts had to identify and
analyse the acquis-provisions that were relevant to their respective
parts of the study.Although it was not the purpose of this study to
proceed to an assessment of the acquis itself, the experts
nevertheless commented on various parts of the acquis.As a result,
this study also produced a systematic analysis of the acquis itself,
probably the first of this kind.
The findings of the study are organised in 10 Chapters, that
correspond to the chapters in the questionnaire (offences against
the financial interests of the European Community, criminal
responsibility, sanctions, investigation and prosecution, settlement,
procedural rights, evidence, recovery, whistteblowing and
international cooperation). They are the result of a remarkable
synergy between the national rapporteurs for the nine candidate
states concerned and the EU experts who wrote the reports (nine
"vertical" studies for the candidate states and thirteen "horizontal"
studies by the EU experts) over a period of one year. The
conclusions of the EU-experts, in the form of "submissions", were
discussed by the entire group of experts (national and EU) during a
meeting hosted by ERA in Brussels, on 29 June 2001.
The final report has attempted to summarise all these findings
and to draw conclusions from the submissions of all the experts.
This has resulted in 21 Recommendations, directed towards
different addressees: candidate states only, both candidate states
and member states and the drafters of the Corpus Juris, depending
on the "finding" that is the subject of the recommendation.These
recommendations have been appended to each of the 10 Chapters
of the study and are summed up after this concluding chapter,
where the addressees of the recommendations are specified.
This study could not ignore the Declaration on the Future of the
Union, in with the Intergovernmental Conference in Nice
(December 2000) called for a deeper and wider debate about the
future of the European Union in view of the imminent accession of
a number of candidate states (Annex IV to the Nice Treaty).
Looking at the objective of the study from this perspective, the final
report has formulated 4 Proposals directed at the European
Council in Laeken (December 2001).
The basic submission behind these proposals is that the
European Council should put one additional point to the list of
"Nice leftovers" that will be addressed by the Declaration of
Laeken: judicial integration in an enlarged European Union. The
Four Proposals make concrete suggestions for this reflection.
The recommendations and proposals have been formulated in
the conclusions to the various chapters of this Study. They are
summed up at the end of this final report.
a. Assessment of the candidate states
I.ASSESSMENT OF THE CANDIDATE
Y A R D S T I C K O F T H E ACQUIS
STATES B Y T H E
The first question is: have candidate states complied with the
acquis communautaire.The study answers this as follows.

The offences of the acquis (Chapter I) are not yet covered by all
national legislations in the candidate states, which leaves some
behaviour, that should be punishable under current EU-conventions,
145SeeConclusionsand recommendationsof Chapter I, 24, in fine,

unpunished,The rules on criminal responsibility (Chapter 2) are, in

most candidate states, in accordance with the acquis, but lacunae
exist in the field of the application of the criminal law to heads of
businesses and legal persons.Administrative law provisions often fill
this lacuna. As far as sanctions are concerned (Chapter 3), some
states still need to introduce acquis sanctions. Important lacunae
exist in the field of sanctions such as the exclusion of fraudsters
from future EU-benefits or subsidies. (See Recommendations I, 2,
5, 7 and 8.)
It is difficult to measure the rules on investigation and
prosecution in candidate states against the yardstick of the acquis
(Chapter 4), as the acquis itself is quite general and vague,
Nevertheless, lack of supervision and monitoring of the police may
be a problem. In addition, lack of judicial control of coercive
measures during the pre-triat stage of the investigation may not be
in accordance with "Strasbourg minimum rules" as they emerge
from the ECHR and from Council of Europe guidelines and
therefore impede cooperation in a European legal area. (See
Recommendations 9 and 13.)
Settlement (Chapter 5) is possible in one out of two candidate
states, but then it is not really part of the acquis, so an assessment
is difficult. Procedural rights in some candidate states (Chapter 6)
may still be problematic but will be tested on their "Strasbourgproofness" by the European Court of Human Rights and, as the
case may be (depending on the further development of the acquis
on the Charter of Fundamental Rights), by the European Court of
Justice. Rules of evidence in the candidate states (Chapter 7) could
be improved in order to ensure better compatibility with emerging
acquis on this subject, particularly on the point of cooperation with
OLAE (See Recommendations II, 13, 14, 15 and 16).
Proceedings allowing recovery of misappropriated funds should,
in many candidate states, be made available also for the recovery of
misappropriated EU funds (Chapter 8) and persons who blow the
whistle on crimes against the financial interests of the EC should be
protected, even though the acquis is not clear on what this
protection should consist of (Chapter 9). In the field of
international cooperation (Chapter 10),candidate states should not
only ratify the relevant conventions, but also restrict reservations in
accordance with various recent programmatory measures of the
EU
(scoreboard, implementation plan, etc.). These
recommendations are summed up at the end of this study. (See
Recommendations 17, 18, 19 and 20.)
2. A S S E S S I N G T H E C A N D I D A T E S T A T E S W I T H
Y A R D S T I C K O F T H E CORPUS JURIS
E R A - Forum - 3 - 2 0 0 1
46
THE
The second yardstick for assessment in this study was the Corpus
Juris, the question being whether candidate states would be in a

position to receive the Corpus Juris if it were to be adopted. The
findings of the study on this point can be summarised as follows.
As far as its provisions on substantive law are concerned
(offences (Chapter I), criminal responisibility in general and in
particular (Chapter 2) and sanctions (Chapter 3)), there seem to be
no insurmountable problems for the reception of the CorpusJuris.
There may be a need for adopting appropriate domestic legislation
in the candidate states (depending~of course, on what the legal basis
for introducing the CorpusJuris would be), but there would be no
consitutional obstacles to its reception. The same is true for the
provisions on settlement (Chapter 5), defence rights (Chapter 6)
and evidence (Chapter 7).As there are, at this stage, no CorpusJuris
provisions on recovery (Chapter 8) and on whistleblowing
(Chapter 9), no assessment can be made on these points but the

Corpus Juris should probably be supplemented with more detailed
provisions on these points.
The difficult points for reception in the Corpus Juris are the
vertical structure of the European Public Prosecutor (Chapter 4)
and the direct enforcement mechanisms that flow from the
proposed system, with European territoriality and the European
arrest warrant as a prominent example (Chapter 10).
All in all, these findings seem to converge with the findings of the
1999 Follow-up Study on the situation in the current member
states. Reception of the "vertical" model would require
constitutional changes and depends largely on which political
choices are made./fthe choice would be in favour of the European
Public Prosecutor, then the reception of the other Corpus Juris
articles would not raise major constitutional problems.
As stated in the Introductory Chapter, it was not the purpose of
this study to re-open the discussion on the Corpus Juris.
Nevertheless, the experts in this study reflected on parts of the
CorpusJuris and made submissions for its improvement on a number
of points.A number of questions that were discussed in the Followup Study of 1999 emerged again in this study, including the question
whether fraud by negligence ("assimilated fraud") should be
retained as a criminal offence (Chapter I) and whether legal
persons and heads of businesses should be criminally responsible
for Corpus Juris offences (Chapter 2) (See Recommendation 3). A
new question was whether the counterfeiting of the Euro should be
included in the CorpusJuris (Chapter I) (See Recommendation 4).
The study pointed to some (be it technical) loopholes to be filled,
not only in the CorpusJuris,but also in the acquis,notably in the field
of settlement (Chapter 5) (See Recommendation 12), Recovery
(Chapter 8) (See Recommendation 18) and whistleblowing
(Chapter 9) (See Recommendation 19). These recommendations
are summed up at the end of this study.
b.Assessment of t h e acquis
it was not the purpose of this study to assess the yardsticks

themselves, but doing the assessment exercise for the candidate
states inevitably led to reflections about these yardsticks.
As to the acquis, a first question is the extent to which
recommendations to the candidate states are also applicable to the
current member states. In other words: do the current member
states comply themselves with all the requirements they are setting
for the candidate states?This was not the subject of this study, and
it has therefore not been systematically "measured" as for the
candidate states.Yet there are good reasons to believe that several
current member states also need to make further legislative efforts
in order to comply with their own acquis. One of the most urgent
factors is the need for ratification of the current "Third Pillar
instruments": despite all action plans of the past few years and the
improvements that can be noted, the result, in terms of ratification,
is extremely poor. It is worth remembering that, of all Third Pillar
instruments, only the Europol convention has entered into force.
A second question relates to the acquis itself as a measurement
yardstick for assessingthe candidate states in this study.This study
shows that there is a distinctive acquis communautaire in the field of
the protection of the financial interests of the European Union.
However, the acquis,as it appears from the various introductions to
the chapters of this study, is a euphemism for a jungle of rules of
different status (EC Treaty, TEU, secondary EC law, secondary EU
law, pre-existing conventions of the Council of Europe and other
organisations).
E R A - Forum - 3 - 2001
For example, in the field of EU-fraud there are two regulations

and four conventions (none of which entered into force) and a
proposal to "reformat" these conventions in a directive; in the field
of money laundering, there are two directives, one framework
decision and one convention; regarding the Euro, there are two
regulations and two framework decisions ~. The "investigatoriar'
monitoring of this "legislation" is done by either Europol or OLAF,
the "prosecutoriar' coordination will probably be done by Eurojust ~7.
How all this works "extraterritorialy", vis-a-vis third states, is
unclear ~*~. Cases of counterfeiting of the Euro outside the EU
territory may soon offer practical examples of the difficulties that
arise from an approach that is based on mere coordination, without
a central steering mechanism .49.
There is no comprehensive text on criminal law and procedure
in general, and regarding the protection of the Union's financial
interests in particular, to which the candidate states can adjust
themselves. The binding force and juridical effect of the existing
texts vary with the instrument and so do questions about the direct
effect and justiciability before national, European and international
courts.With due understanding of the historical reasons that
explain the way in which the acquis has grown over the years and
with all due respect for the negotiators of the instruments that now
compose the acquis, the term itself largely overstates the modest
achievements that have been made in the field of criminal law.
Compared to the results in other branches of the law such as
civil and commercial taw, judicial integration in the field of criminal
law has hardly improved in comparison to the acquis of the Council
of Europe, except in the field of policing (Schengen, Europol, OLAF).
It is very difficult, even for specialists, to over-see the acquis and to
follow it up.An area in which the acquis is particularly unclear is that
of mutual recognition. This is a legacy of the Tampere-milestones,
which led to a potential mutation of the whole area of mutual
cooperation in criminal matters: the objective of harrnonisation has
been replaced by the objective of mutual recognition and direct
enforcement~ Old instruments (even treaties that have not yet
entered into force) are being "reformatted" in view of this
evolution.This creates a very difficult situation for candidate states
that have to adjust to an acquis taking the shape of a perpetuum
mobile.
Yet, in the criminal law, more than in any other area of the law,
transparency of legal rules and of institutions that apply these rules
is a basic requirement.The "cross-pillar" approach, that flows from
the constitutional structure of the EU, has created "legislation" that,
for a layperson or a bystander from outside the EU, is hardly
understandable~s~More generally, the question is whether it makes
sense to continue to distinguish between the European Union and
the three Communities and to make the distinction between ECdirectives and framework decisions under the First andThird Pillars
respectively~s~,
There is an urgent need for a comprehensive text regarding the
protection of the Union's financial interests to which the candidate
states can adjust themselves. More generally, we believe that
developing a clear acquis before accession is a simple requirement
of good governance for the EU, not only towards the citizens of the
candidate states but also towards its current citizens.The idea of
the present submission is further developed in Proposal I below.
/
47

c.Matters for further consideration at a future

Intergovernmental conference
I.MINIMUM REQUIREMENTS FOR JUDICIAL
INTEGRATION
Two problems of a more general nature were highlighted in this
study: the question of "who polices the police" and the question of
"who controls the public prosecutor"? These problems, quite
obviously, have been noticed on previous occasions in relation to
the current situation in the European Union and are not typical for
the candidate states. However, they will only be amplified in an
enlarged community with more than twenty member states.
(i~ Policine the police
The study indicates that, in the candidate states, the police
functions quite autonomously, with little or no supervision of the
public prosecutor (Chapter 4). The same can probably be said of
some current member states, for example the United Kingdom,
where no minist~re public exists.This may, depending on the overall
structure of the criminal justice system, be counter-balanced by
procedural guarantees in the course of the criminal procedure.
There may be a judicial control at the end of the investigation, by the
trial court.There may (also) be a quasi-judicial control by the public
prosecutor, who, in many of the current member states, has powers
of direction and monitoring over the police in the pre-trial stage of
the proceedings.
The question which arises is whether these counter-balances
that may exist domestically, also exist internationally.This raises the
question about how international police cooperation operates in
Europe. Within the general area of justice and home affairs,
cooperation between police services has been the most
"successfur'~s~.The Schengen Convention was the first convention
on the subject of transborder operational police cooperation and
its provisions on policing and criminal law now find their legal bases
in the Third Pillar of the European Union (the UK and Ireland are
not however bound by Schengen co-operation unless they decided
to opt in).The Europol Convention, which binds all member states,
is the only one out of a dozen Third Pillar conventions that has
entered into force (unlike the PIF-convention for example, which
has not yet entered into force). Cooperation between
administrative agencies (which could in part be regulated in the
First Pillar) has also been quite successful. OLAF, with its cross-pillar
structure (First and Third Pillar) and competences, is developing
fast.
International cooperation between national police forces in the
EU and within institutions such as Europol (Third Pillar) and OLAF
is essential in the fight against cross-border crime, including financial
crime, and can only be welcomed. However, the question of the
counter-balancing of this cooperation by judicial (at trial) or quasijudicial control (during the investigation) should be addressed.
Theoretically, judicial control always exists a posteriori, when
investigations have come to an end, and a case is put before a trial
court.This trial court will test the evidence and, in doing so, test the
police practices that are behind the gathering of this evidence.The
146Supra,Chapter I,
147See Chapter 4 (Investigation and prosecution).
148See Chapter 10 (International cooperation).
149Conclusions of Chapter I (p. 24), in fine.
150Helen Xanthaki, "The problem of quality in EU legislation: what an earth is really
wrong?". CommonMarket Law Review200I, 651-676~
15J Jan Wouters, ~[ns~itutional and constitutionat challenges for the European Union some reflections in the light of the Treaty of Nice", European Low Review200t, 343,
at 354.
152 See Bruggeman,W. "Policing in Europe: a new wave?", in Den Boer, M., et al,, The
implementation afSchengen,Maastricht, EIPA, 1997, 172 p.

exclusionary rule will do its work. In practice, this control often

does not materialize because many police investigations do not lead
to criminal proceedings.And if they do, it may not always be possible
to test before the courts of state A whether police investigations in
state B were conducted in a legally acceptable way.
Also, much depends on the choice of the forum, of the place
where a case will be put to trial, if investigations have been
successful. In practice, this is often determined by the place where
the suspects are arrested. Indirectly (or directly), the police may,by
proceeding to the arrest, determine where the trial shall be
conducted and thus choose the forum. In addition, police
investigations may affect the rights of third persons (other than
suspects) who may never be aware of the fact that investigations
were conducted. For those persons, a judicial control a posteriori
would not work.
The presently existing European investigative authorities are not
monitored by anyone except, in the case of Europol, their national
authorities, and, in the case of OLAF, by a surveillance committee.
This monitoring is, however, very limited and does not take the
form of a direction and a surveillance of the investigations.
Pro-Eurojust, the new unit of public prosecutors which is
functioning since I March 2001, does not have powers of direction
or surveillance over Europol or OLAEThis would be different for
the European Public Prosecutor if the Corpus Juris were to be
introduced.
We believe that there should be a quasi-judicial control of police
investigations in the pre-trial stage.The current instruments should,
in our view, be supplemented on this point. Proposal IV below
addresses this problem.
fii) ludicial control of the oublic tarosecutor

In the candidate states, like in the current member states that
have a ministate public, the public prosecutor decides about the
prosecution in the narrow sense (i.e. filing the indictment) and has
also powers of settlement out of court (although this may vary
according to whether or not the principle of legality of
prosecutions is applied). In national proceedings, the choice of the
forum is not a problem as proceedings can usually only be brought
before national courts, not foreign courts.
The choice of the forum in a transnational case is different from
the choice of the forum in a national case, since the forum will
determine the applicable law (lex for/). The risk of forum shopping
exists.There are no binding international criteria to determine this
choice, and often it is a pure policy choice, to be determined in the
interests of a "good administration of justice" which balances needs
of efficiency and the individual needs of the parties concerned.
Eurojust will have coordination powers and is likely to have, in the
future, the power of "concentrating the proceedings" in one
member state, instead of having different parts of the same case
tried before different tribunals in different states. Eurojust is likely
to develop policy guidelines on the choice of the forum.The same
is likely to happen with the European public prosecutor, if the
CorpusJuris were to be introduced.
The question arises whether the existence of such guidelines is
sufficient. We think it is not. We believe that there should be a
judicial control of this choice of the forum, not a priori and not ex
officio, but on the request of the party concerned.
This was already discussed in Florence, at the conclusion of the
1999 Follow-up Study and gave rise to observations on the
introduction of a European Preliminary Chamber. Although the
introduction of such a chamber was not formally proposed at that
stage, many participants believed it to be of crucial importance~s3.
48
E R A - Forum - 3 - 2001
Proposal III of this final report addresses this problem.

2. M A T T E R S F O R C O N S I D E R A T I O N
SUMMIT
BYTHE LAEKEN
(/) Putting "judicial integration" in the EU on its agenda

Annex IV to the Treaty of Nice calls upon member states to
further pursue the reflection on the problems arising from the
imminent accession of candidate states and to formulate a number
of concrete recommendations at the summit of Laeken, which is to
be held in December 2001.
The perspective of enlargement obliges the current member
states to reflect on the question of integration in the field of justice
and home affairs. The problems that currently exist in the Union
with its fifteen member states, are likely to increase in an enlarged
Union of more than twenty member states.We think, however, it
would be wrong to conclude from this proposition that the
problem is with the candidate states and with accession in general.
In our view, the problem is with the current member states, who
are undetermined about what direction to take in the acquis and
who are, in doing so, not offering a clear model to which candidate
states can adjust.
Much has been achieved in recent times. The Charter of
Fundamental Rights of the European Union has been adopted. Despite
its uncertain legal status, it may be "a precursor to a broader
constitutional settlement" and "is likely to have significant legal
consequences '''54. Eurojust has been created and has started
functioning. Depending on how its competences will be filled out in
the legislation (framework decision) that is now proposed, it is likely
to improve international cooperation in criminal matters in general,
including cooperation for crimes that are the subject of the present
study.
We believe, however, that more should be done before accession.
The perspective of the accession of the candidate states should not
be considered as the problem, but as part of the solution. The
minimum minimorum is quite obviously that current EU members
comply with the acquis communautaire themselves. But more is
required. In our view, the EU should first comply with the minimum
requirements for judicial integration (Proposals III and IV).
(ii) Necessity. legitimacy and feasibility of the Corpus Juris in

the candidate states ?
In her final report for the 1999 Follow-up Study, Professor
Delmas-Mart7 described the arguments in favour of the CorpusJuris
and explained why in her view the Corpus Juris was necessary,
legitimate and feasible. She came to this conclusion after a
reflection, conducted in the Follow-up Study in relation to the
current member states. It is interesting to examine whether these
arguments are also valid for the present study, in relation to the
candidate stares ~sS.
The reason why she believed the Corpus Juris was necessary is
that the current "horizontal" cooperation mechanisms are
ineffective for various reasons. There are many obstacles to
cooperation, the procedures are complex, "vertical" cooperation
(cooperation between member states and OLAF) presents serious
loop-holes and many divergences exist in the law of evidence.
153M. Delmas-I~larty,"Lesd~fisdu droit p~naleurop~en",typedmanuscript1999.
154N,Walker, "The Charter of FundamentalRights of the EuropeanUnion: Legal,
Symbolicand ConstitutionalImplications",in F~J.Cullenand F~A.Zervakis,The PostNice Process:Towardsa EuropeanConstitution?,forthcoming(Schriftendes Zentrums
for Europ~ischeIntegrationsforschung,vol.49).SeealsoK.LenaertsandE.De Smijter,
"A 'Bill of Rights'for the EuropeanUnion",CommonMarket Law Review200I, 273300.
155Supra,footnote29.
E R A - Forum - 3 - 2 0 0 1
While there may have been improvements to classic cooperation

in the time elapsed between the rapport Delmas-Marty and today,
the First Evaluation of the Council indicates that these
improvements are mainly in the sphere of ordinary crimes, not
economic crimes 's6. It is unlikely that these problems will diminish
with the accession of the candidate states. The argument of
necessity in favour of the establishment of a European Public
Prosecutor for CorpusJuris crimes therefore still holds.
In the discussion of the legitimacy of the CorpusJuris she rebutted
the various arguments against the introduction of a European Public
Prosecutor. She argued that, if his statute can succesfully guarantee
his independence (as Corpus Juris 2000 does), the problem of
legitimacy does not arise. His legitimacy could be increased if he
were to be counterbalanced by a European PreliminaryChamber.She
concluded that the real debate lies with the political willingness of
states. If such willingness exists, then the appropriate legal basis for
its introduction (an Intergovernmental Conference, a First Pillar
instrument, a Third Pillar instrument) can be used.
The present study indicates that the problem of legitimacy of
CorpusJuris is the same in the candidate states. Nearly all national
reports mention that adoption of the CorpusJuris would require a
revision of the Constitution, but then this is precisely the point
about whether political willingness for judicial (and not merely
economic) integration exists.This question is the same for all states,
current member states and candidate states alike.
The question of the feasibility of the CorpusJuris is linked with the
previous one. If the political willingness exists, most of the
provisions of the Corpus Juris could be received by the current
member states, as appears from M. Delmas Marty's final report of
the previous study. Again, the situation is much the same for the
candidate states.As the present study indicated, the real problems
of reception of the CorpusJuris in the candidate states are not its
provisions on substantive law, settlement, defence rights and
evidence but its provisions on European territoriality (15= I), the
European Public Prosecutor and the European arrest warrant.
(iii) Relaunching the Corpus/uris
The Commission's proposal to introduce the European Public
Prosecutor in the Treaty of Nice '57 was not accepted. Instead,
Eurojust was promoted in the Treaty. Is this the end of the debate?
We believe it is not. The accession of the candidate states should
lead to a new discussion about the Corpus Juris. It may be time to
relaunch the debate. The entry into force of the Euro and the
practical problems that may arise from a lack of centralised
enforcement may be a good opportunity to do so.
We believe Eurojust and the European Public Prosecutor are not
mutually exclusive. We could imagine a situation in which both
would co-exist. Eurojust would have jurisdiction for "art. 29 TEU
crimes" (or for the list of crimes that would be attributed to it in
the framework decision), the European Public Prosecutor would be
competent for crimes against the financial interests of the EU ("art.
280 EC Treaty-crimes"), starting with internal fraud in a first period
of time, and encompassing other forms of fraud such as the
falsification of the Euro (the CorpusJuris-crimes) at a later stage.We
believe that the Laeken summit should elevate this discussion
beyond the "thinking in pillars" (First and Third) approach that has,
so far, characterized the debate (See Proposal I).
One could also imagine a situation where only some member
states would introduce a European Public Prosecutor and the direct
enforcement mechanism that is associated with it.This would not
be an ideal solution but may have the function of serving as a
galvanising precursor for wider judicial integration, as was proved
4~

by the Schengen agreement. The Treaty of Nice eases the
possibilities for closer cooperation in smaller regional frameworks,
composing a minimum number of member states. (See the
principles and procedures laid out for such closer co-operation
between groups of states in the relevant articles of the EC Treaty
and Treaty on European Union, as revised by Nice.). However, we
believe that such "flexible integration" is only a second best
solution, in case the debate in the Union as a whole should fail.We
would not recommend a solution of this kind.
Since the previous Follow-up Study, the Charter of Fundamental
Rights has been adopted. Much will depend on how the debate
concerning the Charter evolves.This too is to be determined by the
Declaration of Laeken. Views on the feasibility of the European
Public Prosecutor may be affected by the further development of
the protection of fundamental rights in the European Union. As a
European Union body (if not organ), the European Public
Prosecutor would be bound by art. 51 of the Charter (Proposal II).
Integration in the field of justice and home affairs should not be
limited to the integration of police forces only (Proposal IV). We
believe that the future judicial integration of the European Union
lies in a fundamental debate about European territoriality and we
call for certain minimum steps to be taken towards closer judicial
integration such as the protection of citizens against forum
shopping (Proposal III) and improved policing of anti-fraud
investigations (Proposal IV). We present these fundamental
questions of policy to the Laeken Summit, well aware that concrete
implementation may depend on legislative action by the Union
institutions and the Member States.
tn conclusion of this Concluding Chapter, the following Proposals
are made.
Proposal I
Clarify and develop the acquis c o m m u n a u t a i r e
There is a distinctive acquis communautaire in the field of the
protection of the financial interests of the European Community
but it is a jungle of rules that are hardly understandable for insiders,
let alone for outsiders.
The European Council summit in Laeken (December 2001)
should commit the Union to clarifying and developing the acquis
communautaire on fighting fraud and reflect on the question
whether the current cross-pillar approach (First and Third Pillar)
should be retained.
This reflection should be part of the objective to achieve "a
simplification of the treaties with a view to making them clearer and
better understood without changing their meaning" (Declaration
on the Future of the Union, Annex IV to the Treaty of Nice, third
point in the list of "points to address'during the summit in Laeken).
Proposal II
Reconsider creation of European Public Prosecutor
In a future Union composed of more than twenty member states,
the present difficulties in the horizontal model of international
cooperation are likely to increase, particularly in the field of the
protection of the financial interests of the European Community.
The Treaty of Nice did not resolve the problem. Eurojust will be
a mere coordination unit, without "vertical" powers. No clarity
exists as to whether the minimum requirements for judicial
integration, set forth in Proposals III and IV below, can be reached
in a purely "horizontal" enforcement scheme.
156Finat Report on the first evaluation exercise - mutual assistance in criminal matters
adopted by the Council on 28 May 200 I, Official journal No. C 216/14, 01.08.200 I.
157See footnote 96.


should re-consider the recommendations of the Committee of
independent experts (September 1999) and of the Committee
Dehaene, Simon and von Weizs~icker (October 1999) concerning
the creation of a European Public Prosecutor for financial crimes
against the European Community.
Proposal III
Consider creation of European Preliminary Chamber
Concurrent jurisdiction (of different equally competent trial
courts) is a technical problem for which all states,current member
states and candidate states, have legal solutions in their domestic
legal orders. No comparable solution exists for transeuropean
concurrent jurisdiction. Resolving this problem is a minimum
requirement for judicial integration.
should examine the proposal to create a European Preliminary
Chamber in the light of the proposed article 225a of the EC Treaty
(contained in the Treaty of Nice) which would allow the Council to
create judicial panels to hear and determine certain cases at first
instance (with the possibility of appeal before the Court of First
Instance of the EC).
Proposal IV
Provide judicial control of cross-border investigations
developing adequate supervision of national and European police
services is an urgent task. Resolving this problem is a minimum
requirement for judicial integration.
Investigative services should be monitored by a public
prosecutorial authority. For financial crimes against the European
Community, the European Public Prosecutor would be the natural
counterpart to a European investigation service like OLAF, just as
Eurojust could be the counterpart to Europol for "article 29 TEUcrimes". Moreover, he could be a spokesperson vis-a-vis Third States
where financial crimes against the EU (for example counterfeiting
the Euro) have been committed outside the Union.
should examine the problems arising from the lack of judicial
control of cross-border investigation operations on the territory of
the European Union.
S U M M I N G UP OF R E C O M M E N D A T I O N S
Recommendation I
"acquis-offences" referred to in Chapter I of this study (EU fraud,
corruption, money lauindering and receiving, participation in
criminal organisation (conspiracy) and counterfeiting the Euro) by
adopting appropriate provisions in their national criminal laws,
Due regard should be given to the duty of assimilating offences
against the EU with corresponding national offences (art. 280 (2)
EC-Treaty).
Addressee of recommendation: Candidate States
Chapter in this study: Chapter I
Topic: Offences
Recommendation 2
The implementation of Corpus Juris offences referred to in
Chapter I of this study (market-rigging, misappropriation of funds,
/
5O
E R A - Forum
- 3 - 2001
abuse of office and disclosure of professional secrets) is necessary

for an effective protection of the financial interests of the European
Community.They should be introduced in the acquis through the
adoption of appropriate legislation (See Proposal I).An easyway to
achieve this result would be the adoption of the Corpus Juris.
Addressee of recommendation:
Candidate member states and current member states
Chapter in this study: Chapter 1
Topic: Offences
Recommendation 3
The offence of fraud by gross negligence should be retained in
the Corpus Juris (art. I(I) and 9) but its application to heads of
businesses and legal persons may need to be further examined (see
also Recommendations 6 and 8).
Addressee of recommendation: CorpusJuris
Chapter in this study: Chapter I
Topic: Offences
Recommendation 4
A question for further examinations is whether counterfeiting
the Euro, which is not an offence against the financial interests of
the European Community in the narrow sense,should be included
in the CorpusJuris as a CorpusJuris-offence.
Chapter in this study: Chapter t
Topic: Offences
Recommendation 5
acquis-rules on the responsibility of heads of business and of legal
persons should do so before accession (see also recommendation 8).
Topic: Criminal responsibility
Recommendation 6
Gross negligenceand recklessnessshould be retained as form of
criminal responsibility for EU-fraud (arts I (I) and 9 CorpusJuris).
However, further consideration should be given to the
application of this form of criminal responsibility when applied to
heads of businesses or other persons with powers of decision
(article 12 CorpusJuris) and to organizations (article 13 CorpusJuris).
Another question for further consideration is whether article 13
should be extended to organizations under public law.
Topic: Criminal responsibility
Recommendation 7
sanctions (penal and administrative) that are required for the
acquis-offences referred to in Chapter I should do so before
accession.
tn particular, confiscation to the benefit of the EU should be
provided, and persons who misappropriated EU funds should be
excluded from future subsidiesand other advantages.
Topic: Sanctions
ERA
- Forum
- 3 - 2001
Recommendation
Appropriate penalties should be introduced to sanction legal

entities and organisations for infringements of acquis-offences.
Where penal sanctions are not available, the sanctions laid down
in the acquis (article 3 Second PIF-Protocol) and in the Corpus Juris
should be provided, at least in the form of quasi-penal sanctions
(see also recommendation 5).
Addressee of recommendation: Candidate member states and
current member states
Topic: Sanctions
Recommendation
Coercive measures during the pre-trial stage of the proceedings

should be in conformity with the European Convention on Human
Rights. In principle, a judge should authorize coercive measures that
restrict the right to privacy. (See also recommendation 13).
Topic: Investigation and prosecution
Recommendation
I0
Where more than one state has jurisdiction over offences

are the subject of this study (Chapter I), the committal of the
for trial should be decided on a European level, for example
European Preliminary Chamber (see also Proposal III
Recommendation 12).
Addressee of recommendation: EU
Topic: Investigation and prosecution
Recommendation
that
case
by a
and
II
Candidate states that have not yet introduced settlement as a

means of recovering misappropriated EC-funds should do so before
accession. The Commission, through OLAF, should at least be
consulted in the settlement process.
Topic: Settlement
Recommendation
12
The idea of further elaborating the Corpus-Juris-article on

settlement (art. 22(2)b) should be considered. For example a
provision could be added to the effect that full repayment of the
misappropriated EC funds should be a condition for settlement.
Concomitantly, the suggestion of a possible validation of
examination (see also Proposal III and Recommendation 10).
Addressee of recommendation: Corpus Juris
Topic: Settlement
Recommendation

51
13
It is not for this study to make concrete submissions on the

"Strasbourg-proofness" of the defence rights in the candidate
states, that is the general compatibility of the legal systems under
study with articles 5, 6 and 8 European Convention on Human
Rights. In the same way as for the current member states over the
past decades, the European Court of Human Rights will scrutinize
respect for human rights in the candidate states.
However, lack of "Strasbourg-proofness" of parts of the
legislation in some states may hinder international cooperation with

the current member states and may be problematic, as the evidence
collected in a way that is not "Strasbourg-proof" may be
inadmissible (See also Recommendations 9 and 15).
Topic: Defence rights
Recommendation
14
States that have not yet done so, should give effect to art.29
Corpus Juris in order to protect the rights of suspects during the
pre-trial stage of the criminal proceedings.
Accordingly, a person may not be heard as a witness but must be
treated as accused from the point when any step is taken
establishing, denouncing or revealing the existence of clear and
consistent evidence of guilt and, at the latest, from the first
questioning by an authority aware of the existence of such
evidence; before any questioning takes place the accused must be
informed of his right to silence. From the time of his first
questioning, the accused has the right to know the content of the
charges against him.
Topic" Defence Rights
Recommendation
I5
Evidence obtained abroad should be admissible before national

courts provided that it was legally obtained according to the rules
of the place where it was gathered (locus reg/t actum), and provided
that it was obtained in conformity with the European Convention
on Human Rights ( ~ Recommendation 13).
Due regard should be given to the rules on evidence in the
European Convention on Mutual Assistance (2000), particularly
relating to evidence obtained abroad. In particular, testimony from
abroad by video link should be made possible in those states that
do not allow it yet.
Adoption of article 32 of the Corpus Juris (admissible evidence)
would considerably facilitate the "free movement of evidence" in the
European legal area, in furtherance of w of the Tampere milestones.
Topic: Evidence
Recommendation
16
Candidate states that have not yet done so should, before

accession, create an appropriate legal environment to allow on-thespot-checks by OLAF under Regulations No. 2185/96 and 1073/99,
and technical and operational support by OLAF under art. 7 of the
Second PIF-protocol. Reports made under the Regulations referred
to must be given the same effect in judicial proceedings in Member
States as reports drawn up by national inspectors.
Topic: Evidence
Recommendation
17
Candidate states that apply existing recovery mechanisms only to

national state debts should make these mechanisms available for the

recovery of misappropriated EC funds.

Topic: Recovery
Further consideration should be given in the acquis

communautaire to the possibilities of associating the Commission,
through OLAF, in the recovery-process (supervision, active
participation, etc.).
Concomitantly, the possibility should be considered of
supplementing the Corpus Juris with a provision on recovery in
which the European Public Prosecutor plays an active part.
Addressee of recommendation: EU and Corpus Juris
Topic: Recovery
Persons who blow the whistle on offences against the financial

interests of the European Community should receive adequate
protection. Further thought should be given to what form this
protection should take under various branches of the law (labour
law, administrative law, criminal law etc.).
The delicate question whether or not whistleblowing should be
encouraged with financial incentives deserves further examination.
Topic: Whistle blowing

acquis.conventions on international cooperation in criminal matters
In particular, the problems of the nationality exception to
extradition and the obstacles to mutual assistance (double
criminality for home searches, ordre public clause) should be
addressed. Simplified extradition should be introduced and direct
communication between judicial authorities should be rendered
possible.
Due regard should be given to the Recommendations arising
from the first evaluation exercise on mutual assistance in criminal
matters by the Council (28 May 2001).
Topic: Cooperation
Recommendation 2 I
EU member States should themselves comply with the priorities

they set in the Programme of measures to implement the principle
of mutual recognition of decisions in criminal matters (24
November 2000) and proceed to ratification and implementation of
the acquis-instruments that have been adopted.They should set an
example for the candidate states (see also Proposal I)
Addressee of recommendation: Current member states
Topic: Cooperation
E R A - F o r u m . 3 - 2001
S2
PROPOSALS FOR CONSIDERATION

SUMMIT
AT THE LAEKEN
Proposal I
Clarify and develop the acquis communautaire
There is a distinctive acquis communautaire in the field of the
protection of the financial interests of the European Community but it is
a jungle of rules that are hardly understandable for insiders, let alone for
outsiders.
The European Council summit in Laeken (December 2001) should
commit the Union to clarifying and developing the acquis communautaire
on fighting fraud and reflect on the question whether the current crosspillar approach (First and Third Pillar) should be retained.
This reflection should be part of the objective to achieve "a
simplification of the treaties with a view to making them clearer and
better understood without changing their meaning" (Declaration on the
Future of the Union, Annex IV to the Treaty of Nice, third point in the list
of"points to address'during the summit in Laeken).
Justification
The legal sources of the acquis communautoire are spread over
the EC-Treaty,the Treaty on European Union, secondary EC law
(including regulations and directives), secondary EU law (including
"Third Pillar" conventions and framework decisions), pre-existing
conventions of the Council of Europe and other organisations,etc.
This study shows that there is a distinctive acquis communautaire
in the field of the protection of the financial interests of the
European Union.This acquis, however, is a hotch-potch of rules of
different binding force and variable "justiciability" for the citizen in
courts of law, national and European.
In the criminal law, more than in any other area of the law,
transparency of legal rules and of the institutions which apply these
rules is a basic requirement.The "cross-pillar" approach which flows
from the constitutional structure of the EU, has created
"legislation" that, for a layperson or a bystander from outside the
EU, is hardly understandable.
There is an urgent need for a comprehensive text regarding the
protection of the Union's financial interests to which the candidate
states can adjust themselves.
Proposal II
Reconsider creation of European Public Prosecutor
In a future Union composed of more than twenty member states, the
present difficulties in the horizontal model of international cooperation
are likely to increase, particularly in the field of the protection of the
financial interests of the European Community.
The Treaty of Nice did not resolve the problem. Eurojust will be a mere
coordination unit, without "vertical" powers. No clarity exists as to
whether the minimum requirements for judicial integration, set forth in
Proposals III and IV below, can be reached in a purely "horizontal"
enforcement scheme.
The European Council summit in Laeken (December 200 I) should reconsider the recommendations of the Committee of independent experts
(September 1999) and of the Committee Dehaene, Simon and von
Weizs~cker (October 1999) concerning the creation of a European
Public Prosecutor for financial crimes against the European Community.
Justification
Judicial integration will be a natural and necessarycomplement of
further economic integration. Further thought should be given to
the minimum requirements for this integration.
Integration in the field of justice and home affairs should not be
E R A - Forum - 3 - 2001
limited to integration between investigative authorities only.

Proposals III and IV below set forth minimum requirements for
judicial integration in Europe.
Mere coordination between investigatorial and prosecutorial
efforts of member states is not sufficient to protect the financial
interests of the European Community.
The notion of European territoriality for the purposes of
investigating, prosecuting and punishing offences against the financial
interests of the European Community must be further examined.
The CorpusJuris approach of one single jurisdictional unit for crimes
against the European Community (15=1) is to be preferred over
the approach of achieving better coordination between 15
territories that are considered as separate jurisdictional units
Os=ls).
In addition, there is a need for a judicial spokesperson vis-a-vis
third states.This need arises, not only in respect of EU crimes in the
narrow sense, but also, for example, for the offence of
counterfeiting the Euro (see recommendation 4). The European
Public Prosecutor would be more appropriate for this function
than a mere coordination unit like Eurojust.
As an organ or body of the European Union, the European Public
Prosecutor would be accountable under art. 51 of the Charter of
Fundamental Rights and Freedoms in the European Union (2000).
Proposal III
Consider creation of European Preliminary Chamber
Concurrent jurisdiction (of different equally competent trial courts) is a
technical problem for which all states, current member states and
candidate states, have legal solutions in their domestic legal orders. No
comparable solution exists for transeuropean concurrent jurisdiction.
Resolving this problem is a minimum requirement for judicial integration.
The European Council summit in Laeken (December 2001) should
examine the proposal to create a European Preliminary Chamber in the
light of the proposed article 225a of the EC Treaty (contained in the
Treaty of Nice) which would allow the Council to create judicial panels to
hear and determine certain cases at first instance (with the possibility of
appeal before the Court of First Instance of the EC).

S3
Proposal IV
Provide judicial control of cross-border investigations
developing adequate supervision of national and European police services
is an urgent task. Resolving this problem is a minimum requirement for
judicial integration.
Investigative services should be monitored by a public prosecutorial
authority. For financial crimes against the European Community, the
European Public Prosecutor would be the natural counterpart to a
European investigation service like OLAF,just as Eurojust could be the
counterpart to Europol for "article 29 TEU-crimes': Moreover, he could
be a spokesperson vis-a-vis Third States where financial crimes against
the EU (for example counterfeiting the Euro) have been committed
outside the Union.
The European Council summit in Laeken (December 200t) should
examine the problems arising from the lack of judicial control of crossboarder investigation operations on the territory of the European Union.
Justification
European guidelines, particularly w 21 of the Council of Europe
Recommendation 2000(19) on the supervision of police services by
public prosecutorial services, should apply to transborder police
activities of national police services and to activities of European
investigative bodies such as Europol and OLAE Eurojust lacks
powers of supervision, either under the First Pillar (OLAF) or the
Third Pillar (Europol) instruments and, in its present form, is not the
appropriate organ for the exercise of these powers, as it is a mere
coordination unit
A vertical system such as the CorpusJuris, with a European Public
Prosecutor overseeing investigations (art. 20 (2) a Corpus Juris) is
more appropriate for this supervision task and has the advantage of
transparency.The European Public Prosecutor should be given the
powers to supervise and monitor national and European police
services while they investigate CorpusJuris offences.
A P P E N D I X : C O R P U S JURIS 2000*
Florence, May 1999

Justification
The acquis-rules on (extra)-territorial jurisdiction enhance the
possibility of cases where two or more states are competent to try
the same person for the same offence (concurrent jurisdiction).
This is not only inefficient, but also creates the risk for the same
person to be tried in different states for different parts of the same
offence. Where such concurrent jurisdiction exists, prosecutions
should be concentrated in one state only.
The choice of the forum should be determined in the interests
of a good administration of justice. It should be made by a public
prosecutorial authority on a European level.This could be Eurojust
(as part of its mission of coordination) or the European Public
Prosecutor, were the Corpus Juris to enter into force. Criteria for
the choice of the forum should be developed in general criminal
justice policy guidelines, to be formulated in further implementation
of the current acquis-texts on the choice of the forum and art. 26 (2)
Corpus Juris.
This decision should be subject to judicial supervision, in the
form of a fiat or a nihil obstat.This should be done by a European
Preliminary Chamber, which would oversee the choice of the forum
at the end of investigations and could also have other functions,
such as the committal for trial (recommendation 10) and the
validation of settlements out of court for crimes against the financial
interests of the European Community (recommendation 12).
1 - CRIMINAL LAW (SPECIAL PART)

OFFENCES COMMITTED BY ANYONE
Article I
Fraud affecting the financial interests of the European Communities and
assimilated offences
I. Fraud affecting the budget of the European Communities constitutes
a criminal offence, both in the area of expenditure and in the area of
receipts, when one of the following acts has been carried out either
intentionally (fraud) or by recklessness or by gross negligence
(assimilated offence):
(a) in connection with a grant or subsidy or the settlement of a fiscal
debt, presenting the competent authority with declarations which in
important respects are incomplete, imprecise, or based on false
documents, in such a way as to risk harm to the financial interests
of the European Communities;
(b) in the same context, omitting to provide information to the
competent authorities in breach of a requirement to provide such
information;
(c) diverting Community funds (subsidies or grants) obtained legally.
M, DELMAS-MARTY& J.A.E.VERVAELE(eds.),Theimplementationof the CorpusJuris
in the Member States,Penalprovisionsfor the protection of EuropeanFinances,
lntersentia,2000.vol.l. alsoavailableon http://ww~:!aw.uu.nl/v,'iarda/cornus/index
I.htm.
Thistext is reproducedw~ththe permissionof IntersentiaPublishers.
of the E l l in the Candidate States
54
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2. Any person who corrects the inaccuracies or omissions in a false

declaration, or withdraws an application made on the basis of false
documents, or who informs the authorities about facts that he has
omitted to reveal before the act has been discovered by these
authorities, is not punishable.
- 3 - 2001
via a third person, any offer, promise or advantage of whatever

n~ure:
I. It is a criminal offence for a person, in the context of a adjudication

process governed by Community law, to make a tender on the basis
of an agreement calculated to restrict competition and intended to
cause the relevant authority to accept a particular offer.
2. The grounds for exemption from punishment defined in Article I (2)
also apply in relation to market-rigging.
(a) in order to carry out an official act relating to his duties, in breach
of his official obligations;
(b) in order not to carry out an official act or act relating to his duties,
which he is officially required to perform.
4. Active corruption means where any person makes or gives, directly,
or via a third person, any offer, promise or any other advantage of
whatever nature, t o an official, in his own interest or in the interest
of a third person:
(a) to induce him to carry out an official act in relation to his dudes, in
such a way as to contravene his official duties;
(b) to induce him not to carry out an official act or act relating to his
dudes which his official duties require him to carry out.
Article 3
Money laundering and receiving (previouslyArticle 7)
Article 6
Misappropriation of funds (previouslyArticle 4)
Article 2
Market-rigging
I. It is a criminal offence to launder the fruits or the profits of offences

described in the Corpus Juris (Articles I, 2, 4 and 8). Laundering
means:
(a) the conversion or transfer of goods resulting from any of the
criminal activities mentioned in the previous paragraph or
participation in such an activity with the aim of concealing or
disguising the illicit origins of the said goods or of helping any person
involved in this activity to escape the legal consequences of his acts;
(b) concealing and disguising the nature, origin, site, placing, disposal,
movements or real ownership of goods or rights resulting from any
criminal activity mentioned in the previous paragraph, o r
participation in such an activity.
2. It is a criminal offence to receive products or profits from the
offences set out. Receiving means acquiring, keeping or using goods
deriving from any of the criminal activities mentioned in the
previous paragraph, or participation in such an activity.
An official duly authorised to dispose of Community funds commits

a criminal offence if he appropriates or misapplies them, either by
deciding to award a subsidy, grant or exemption in favour of a
person who clearly has no right to such a decision, or by intervening
directly or indirectly in the award of grants or exemptions from duty
in relation to any business or operation in which he has a personal
interest.
Article 7
Abuse of office (previouslyArticle 5)
An official responsible for the management of Community funds
commits a criminal offence if he abuses his powers and thereby
damages the financial interests of the European Communities.
Article 8
Disclosure of secrets pertaining to one's office (previouslyArticle 6)
It is a criminal offence for an official improperly to reveal secrets
pertaining to his office, when the secrets concern information
acquired in, or by virtue of, his professional activity, when monitoring
receipts or awarding grants and subsidies, if this revelation is likely
to damage the financial interests of the European Communities.
Article 4
Conspiracy (previouslyArticle 8)
It is a criminal offence to take part in a conspiracy that is harmful to
the financial interests of the European Communities.A conspiracy is
when three or more persons work together, setting up a stable and
operational organisation, with a view to carrying out several
offences defined by Articles I to 7.
OFFENCES COMMITTED BY OFFICIALS
II - GENERAL CRIMINAL LAW

CRIMINAL LIABILITY
Article 9
Mens rea (previouslyArticle 10)
Article 5
Corruption (previouslyArticle 3)
I. For the purposes of Articles 5 to 8 of the Corpus Juris, the term
official covers any official whether "European' or "national'. A
"European official' means:
(a) any person who is an official or an agent employed under contract
as understood by the Staff Regulations;
(b) any person placed at the disposal of the European Communities by
Member States or by any public or private organisation, who
exercises functions equivalent to those exercised by officials or
other agents of the European Communities. The expression
"national official' is interpreted by reference to the meaning
of"officiar or "public officer' under the national law of the Member
State where the person in question holds this title for the purposes
of application of criminal law.
2. Passive and active corruption are criminal offences if they harm the
financial interests of the European Communities.
3. Passive corruption is where an official solicits or accepts, directly or
All the offences set out above (Articles I to 8) require intention,

with the exception of offences "considered' as fraud ("d~lit assimil~
la fraude') against the Community budget (Article I) for which
recklessness or gross negligence is sufficient.
Article I0
Error (previouslyArticle I I)
Mistake as to the constituent elements of the offence excludes
intention. Mistake as to the legal prohibition excludes liability if it would
have inevitably been committed by a careful, sensible person. If the
mistake was avoidable, the penalty may be reduced, and the judge may
not impose the maximum penalty (see Article 14).
Article I I
Individual criminal liability (previouslyArticle 12)
Any person may be held responsible for the offences defined above
(Articles I to 8) as a main offender, inciter or accomplice:
as a main offender if he commits the offence by himself, jointly with
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- Forum - 3 - 2001
another person or organisation (Article 13) or by means of an

-
innocent agent;
as an inciter if he knowingly provokes a natural person or
organisation (Article 13) to commit the illegal act;
as an accomplice if he knowingly helps a natural person or
organisation (Article 13) to commit the illegal act.
The maximum penalty for the accomplice shall not exceed three
quarters of the penalties underArticle 14.
Article I Ibis
Criminal attempts (new article)
Attempts to commit an offence underArticles I to 3 and 5 to 8,and
participation in such an attempt (Article II), are punishable. The
maximum penalty is three quarters of the penalty applicable, under
Article 14, to the completed offence.A person is guilty of a criminal
attempt if, with intent to commit an offence under Articles I to 3
and 5 to 8,he performs an act which consitutes the commencement
of the commission of a criminal offence. A person who has
attempted to commit an offence shall not be punished if he
voluntarily desists from completion or voluntarily forestalls
completion. If the offence is not completed for other reasons, it is
sufficient that the person voluntarily and seriously tries to desist
from completion or to forestall completion.
Article 12
Criminal liability of the head of business or persons with powers of decision
and control within the business:public Ol~cers (previously Article 13)
I. If one of the offences under Articles I to 8 is committed for the
benefit of a business by someone acting under the authority of
another person who is the head of the business, or who controls it
or exercises the power to make decisions within it, that other
person is also criminally liable if he knowingly allowed the offence to
be committed.
2. The same applies to any public officer who knowingly allows an
offence under Articles I to 8 to be committed by a person under
him.
3. If one of the offences under Articles I to 8 is committed by
someone acting under the authority of another person who is the
head of a business, or who controls it or exercises the power to
make decisions within it, that other person is also criminally liable if
he failed to exercise necessary supervision, and his failure facilitated
the commission of the offence.
4. In determining whether a person is liable under (I) and (3) above,
the fact that he delegated his powers shall only be a defence where
the delegation was partial, precise, specific, and necessary for the
running of the business, and the delegatees were really in a position
to fulfil the functions allotted to them. Notwithstanding such a
delegation, a person may incur liability under this article on the basis
that he took insufficient care in the selection, supervision or control
of his staff, or in the general organisation of the business, or in any
other matter with which the head of business is properly
concerned.
5. Where liability is incurred under this article, the maximum penalty
shall be half the penalty prescribed under Article 14.
Article 13
Criminal liability of organisations (previously Article 14)
I. The offences defined above in Articles I to 8 may be committed
bycorporations, and also by other organisations which are
recognised by law as competent to hold property in their own
name, provided that the offence is committed for the benefit of the

of t h e EU in the Candidate States
55
organisation by some organ or representative of the organisation, or

by any person acting in its name and having power, whether by law
or merely in fact, to make decisions.
2. Where it arises, the criminal liability of an organisation does not
exclude that of any natural person as main offender, inciter or
accomplice to the same offence.
SANCTIONS
Article 14 Penalties and measures (previausly Article 9)
I. The principal penalties, common to all offences set out in Articles 2
to 8, and also applicable to Article I where offences under it are
committed intentionally, are as follows:
(a) for natural persons, a custodial sentence for a maximum of five years
and/or a fine. Fines shall be determined according to the day fine
system.A day fine corresponds to the daily income of the accused.
This may be estimated freely by the court, but shall not exceed
3,000 Euros per day.The total fine shall not exceed three hundred
and sixty five day fines.The court may suspend the sentence, put the
offender on probation, convert a custodial sentence into a fine, or
impose any other kind of reduced or mitigated penalty to the extent
that this is permitted under national law (cf.Article 35).
(b) for organisations, a fine of up to ten million Euros.
2. The following additional penalties may also be imposed where the
public interest so requires
(a) publication of the conviction. Publication shall be in the Official
Journal of the European Communities and in the daily press, if the
public interest requires it, especially if the offence has created a large
publicity;
(b) for an offence under Article I, exclusion of the convicted natural
person or organisation from future subsidies granted under
European Community law, for a period of up to five years;
(c) an offence under Articles I or 2, exclusion of the convicted natural
person or organisation from future contracts with public authorities
using European Community funds, for a period of up to five years;
(d) for offences under Articles 3 to 6, a ban from Community and
national public office for up to five years. Such a ban shall apply
across the entire territory of the Member States of the European
Union.
3. Where an offence under Article I is committed recklessly or by
gross negligence, the maximum penalties shall be two thirds of those
laid down in (I) and (2)(b) and (d) above.The same shall apply to
offences provided by Article 8.
4. The instruments, fruits and profits of the offence may be confiscated
to the benefit of the European Communities.This may be ordered
not only where the accused is convicted, but also where he is
proved to have committed the actus reus of the offence, but is not
convicted because of lack of mens rea or insanity.
Article 15
Extent of penalties
I. The penalties applicable to the offences under Articles I to 8 shall
not exceed the range justified by the fault of the offender as to the
seriousness of the offence and the extent of his participation in it.
2. Subject to paragraph I the court in determining sentence shall be
guided: in the case of organisations, by the need for general and
specific deterrence, and in the case of natural persons, by the need
for general and specific deterrence, tempered where appropriate by
the need to secure the rehabilitation of the offender.
3. In applying 2, the national court may take account of the previous
conduct of the accused, including any previous convictions and
administrative sanctions, his general character (good or bad), his

motives, his economic and social situation and any efforts he has
made to make amends for the harm that he has done. Other factors
treated as relevant to sentence under national law may be taken into
account in so far as Article 35(2) allows.
Article 16
Aggravating and mitigating circumstances
t. Where aggravating circumstances exist, the maximum period of
custodial sentences provided for by Article t4(1) shall be seven
years instead of five years; the maximum fine for natural persons
shall be 540 day fines instead of 360; and the maximum fine for
organisations shall be 15 million Euros instead of 10 million Euros.
2. "Aggravating circumstances' mean either of the following:
- that the amount of the fraud or profit sought through the offence
exceeds 100,0(30Euros;
- as regards Articles 1 to 3 and 5 to 8, that the offence was comm~ed
in the context of a conspiracy;
3. By application of the principle of complementarity stated in Article
35(2) below, the scope and effect of mitigating circumstances shall
be determined by national law.
Article 17
Penalties incurred in the case of concurrent offences
I. Where by a single act or omission a person commits more than one
offence against Artictes I to 8 above, a single penalty shall be applied,
determined on the basis of the maximum penalty applicable to the
most serious offence, increased by one half.
2. Where a person commits more than one offence against Articles I
to 8 by a series of separate acts or omissions, a single penalty shall
be applied, determined on the basis of a maximum penalty which is
twice the maximum penalty for the most serious offence. In the
cases provided by (1) and (2) the penalty determined thereunder
shall not exceed the sum of the penalties which could have been
inflicted separately for each offence,
3. Where at trial a defendant is convicted of both a criminal offence
against Articles I to 8 above and some offence against national taw,
and both offences arose out of the same facts, a single penalty is
applied, determined on the basis of the maximum penalty that is the
higher.
4. Where a non penal, administrative sanction under Community or
national law has already been imposed for the same act, this must be
taken into account in determining the penalty for any offence under
Articles I to 8.
II1 - CRIMINAL PROCEDURE
THE EUROPEAN PUBLIC PROSECUTOR
Article 18
Status and structure of the European Public Prosecutor (EPP)
1. For the purposes of investigation, prosecution, trial and execution of
sentences concerning the offences set out above (Articles I to 8),
the territory of the Member States of the Union constitutes a single
legal area.
2. The EPP is an authority of the European Community. responsible for
investigation, prosecution, committal to trial, presenting the
prosecution case at trial and the execution of sentences concerning
the offences defined above (Articles I to 8). It is independent as
regards both national authorities and Community institutions.
3. The EPP consists of a European Director of Public Prosecution
(EDPP) whose offices are based in Brussels and European Delegated
Public Prosecutors (EDelPPs) whose offices are based in the capital
of each Member State, or any other town where the competent
court sits in accordance with Article 26,
/
56
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4. The EPP is indivisible and interdependent:

(a) indivisibility implies that any act undertaken by one of its members
is deemed to have been undertaken by the EPP;that all acts which
fall within the competence of the EPP (particularly powers of
investigation as set out under Article 20) may be undertaken by any
one of its members; and that, with the agreement of the EDPP, or
with his retrospective approval in emergencies, any of the EdelPPs
may fulfil their duties on the territory of any of the Member States,
in collaboration with the assistance of the EDeIPP in that Member
State;
(b) interdependence requires, on the part of the different EDelPPs, an
obligation to assist each other.
5. National Public Prosecutors (NPPs) are also under a duty to assist
the EPR
Art/de / 9
Seisin of the EPP and opening of proceedings
I. The EPP must be informed of all acts which could constitute one of
the offences defined above (Articles I to 8), by the national
authorities (police, public prosecutors, juges d'instruction, agents of
national administrations such as tax or Customs authorities) or the
competent Community body, the European Office for the Fight
against Fraud (OLAF). It may also be informed by denunciation from
any citizen or by a complaint from the Commission. National
authorities must seise the European Prosecution Service at the
latest when the suspect is formally "under investigation', under
Article 29(I), or when coercive measures are employed, particularly
arrest, searches and seizures or when a person's telephone is to be
tapped.
2. If an investigation conducted by a national authority reveals that one
of the offences above has been committed (Articles I to 8), the file
must be immediately submitted to the EPR
3. However the EPP learns about the facts, it may become officially
seised either by the national authorities or by acting on its own
initiative.
4. The decision to prosecute, which means opening an investigation,
may be taken by the EPP whatever the sum of the fraud involved.
The EPP,bound by the tegality principle, must bring a prosecution if
it appears that one of the offences (Articles I to 8) has been
committed. It may however, by a decision with special grounds
communicated immediately to the person who has informed it, or
denounced it to its officials or laid a complaint:
(a) refer offences which are not serious or which affect principally
national interests to the national authorities;
(b) drop the case, if the accused, having admitted guilt, has made amends
for the damage caused and, as the case may be, returned funds
received illegally;,
(c) or grant an authorisation for settlement to a national authority
which has applied for it, according to the conditions set out below
(Article 22(2b)).
Article 20
Powers of investigation of the EPP
I. In order to discover the truth and to bring the case to a point where
it may be tried, the EPP conducts investigations into the offences
defined above (Articles I to 8) looking for evidence of innocence as
well as evidence of guilt (~ charge et ~ d~charge). Its powers are
divided between the European Director of Public Prosecutions
(EDPP), the European Delegated Public Prosecutors (EDelPPs) and,
as may be. national authorities appointed for this purpose, according
to the following rules.
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57
2. The EDPP's own powers include:

(a) overseeing investigations and their delegation to one or more
according to the laws in the relevant state.The national prosecutor

may if appropriate join the proceedings, if national interests are also
EDelPPs, in accordance with the conditions and restrictions set out
under threat. In such a case, notices and summons are also
below (Article 20(3)).

(b) the co-ordination of investigations undertaken by the EDelPPs as
well as by national police forces and competent national
addressed to the national prosecutor and the file is sent out to him
in good time.
2. For the same offences, the prosecution is extinguished on the death
administrations and, as may be, OLAF; this co-ordination may take
of the defendant (or if it concerns a group, the dissolution of the
the form of oral or written recommendations to the relevant
group), or by expiry of the limitation period or by settlement:

(a) there is a limitation period of five years, calculated from the day
authorities;
(c) the right to call in cases where the investigation reveals that they
concern in whole or in part offences defined above (Articles I to 8).
when the offence was committed if within this time there has been
no investigation or prosecution; if investigation or prosecution have
3. All the following powers may either be exercised by the EDPP or
taken place, the offence is only time-barred from five years after the
delegated to the EDelPP, where there is an investigation into
last act of investigation or prosecution. In all cases, notification of the
offences set out in Articles I to 8:
charges to the suspect interrupts the limitation period;
(a) questioning of the accused, under conditions which respect his

rights as set out below (Article 29);
(b) collection of documents and/or computer-held
(b) settlement is ruled out in the case of repeated offences, where arms
or forgery were used, or if the sum involved is 50,000 Euros or
information
necessary for the investigation and, if need be, visits to the scene of
the offence;
more. In other cases, it may be proposed by the national authorities

to the EPP, both for cases under national jurisdiction (cf. Article
19(4a)), and cases under European jurisdiction, according to the
(c) request addressed to the judge to order an expert enquiry under

the conditions set out below (Article 29);
following conditions: the defendant freely admits his guilt, the
(d) searches, seizures and telephone tapping ordered in accordance
trial, the decision to come to a settlement is made publicly, and the
with the rule below (Article 25bis) on authorisation from a judge or

with his subsequent permission, and undertaken with respect for the
agreement concluded respects the principle of proportionality. In

the case of refusal, the EPP must, if there are grounds, call in the
rights of the accused (Article 32);
case.The settlement agreement is subject to the control of the judge
(e) hearings of witnesses who agree to co-operate with the law and, as
authorities have sufficient evidence of guilt to justify committal to
of freedoms.
may be, witnesses obliged to appear in accordance with the

conditions below (Article 32);
(f) notification of charges to the accused, with respect for the rights set
Article 23
Role of the EPP in the execution of sentences
out below (Article 29);

(g) to make requests for a person's remand in custody or judicial
I. When a conviction becomes definitive, it is immediately

communicated by the EPP to the authorities of the Member State
control.
4. The powers delegated to the DdelPP can in turn be partially
appointed as the place of execution of the decision; certain penalties
subdelegated, for a limited period and in respect of a particular
conviction may be carried out in one or more places other than the
place of imprisonment. The EPP is responsible, alongside the
matter, to a national authority (prosecuting authority, police or

other competent authority, such as the tax authorities or Customs).
such as confiscation, removal of rights or publication of the
The national authority is obliged to follow the rules contained in the
competent national authority, for ordering and overseeing the

implementation of the sentence if this is not automatic. In principle,
European CorpusJuris.
execution of the penalties is governed by the laws in force in the
Article 2 I
Role of the EPP in terminating the investigation
I. When he considers investigations to be completed, the EDelPP
decides, under the authority of the EDPP, whether to make a
decision not to prosecute, or to bring the case to court.
2. The decision not to prosecute is notified to the European
Commission, to the accused and to any body or person who
informed the EPP, denounced the offence to its officials or laid a
complaint, within the meaning defined above (Article 19(I)).
Member State appointed as place of execution of the sentence.

However, the EPP oversees the application of the following common
rules across the whole territory of the States of the European
Union:
(a) any period spent in custody by the accused on account of the same
acts, in any State and at any point of the procedure, is deducted from
the custodial sentence pronounced by the court of judgement;
(b) no person may be prosecuted or criminally convicted in a Member
State by reason of one of the offences defined above (Articles I to
8) for which he has already been either acquitted, or convicted by a
3. The decision to bring the case to court is notified under the same
final judgement, in any of the Member States of the European Union.
conditions as non-prosecution (Article 21(2)). Such notification
2. The EPP may, if there are grounds, authorise a transfer if a convicted
includes details such as the name and address of the accused, a

description of the acts and the offence so committed, and also states
person with a custodial sentence asks to be imprisoned in a

Member State other than the one named by the conviction.
where the case is to be tried. It is verified by the judge if freedoms

in accordance with the rules set out below (Article 25bis) who
seises the court with jurisdiction and sends a summons to the
accused stating the date and the time he is to appear.
Article 24
Competence ratione loci of the EPP,territorial effects of judgernents and cooperation with third countries
I. In the single legal area as defined in Article 18(I), competence
Article 22
Bringing and terminating a prosecution
I. For the offences set out above (Articles I to 8), the EPP prosecutes
at the court of trial (selected as indicated hereafter, Article 26),
ratione loci is exercised in application of the principle of European

territoriality according to the following rules:
(a) members of the EPP appointed by the EDPP to bring prosecutions
and conduct investigations into cases in accordance with the

conditions set out above (Article 18 et seq.) have competence

across the entire territory of the European Union (cf. Article
18(4a));
(b) warrants for arrest and decisions relating to the offences defined
above made by the courts of any of the Member States are valid
across the whole territory of the Union, as are judgements.
2. If investigations require legal co-operation of any kind from a third
state, the EPP requests the national authorities of the principal
country where investigations are taking place to apply to the third
state concerned, following the procedure laid down by the national
and international legal instruments in force.
PREPARATORYSTAGE(PREVIOUSLYARTICLE25)
Article 25
Definition and duration of the preparatory stage
I. The preparatory stage of proceedings, opened with regard to the
offences defined above (Articles I to 8), lasts from the initiat
investigations conducted by the EPP until the closure of such
investigations and the decision to commit the case to trial (Article
21 (3) above).
2. The preparatory stage has a legal duration of no more than six
months. The judge of freedoms may, acting on a request from the
EPP,decide on an extension for another period of six months.After
hearing representations from the parties to the proceedings, the
judge determines the length of the extension, taking into account
the steps already taken by the EPP and the needs of the
investigation. A further extension may be requested and granted
according to the same procedure. 3 This system would only apply in
the absence of a Pre-trial Chamber (see chapter 2, section 2).
Article 25bis
The judge of freedoms
I. Throughout the preparatory stage, an independent and impartial
"judge of freedoms', designated by each Member State within the
jurisdiction sitting where the EDPP is established, exercises judicial
control.This judge is also competent to order an expert opinion. He
may also order measures to conserve the subject-matter of the
prosecution, in cases where the duty to repay appears to be beyond
dispute and such measures are necessary for the preservation of
civil interests and are proportionate.The judge of freedoms applies
national law as well as the CorpusJuris.
2. Throughout the investigation of offences defined above (Articles I
to 8), the prior approval of the judge of freedoms is needed for any
measure (including coercive measures which are permitted under
the conditions listed in Article 2Squarer) which has the effect of
restricting or depriving a person of the rights and fundamental
freedoms laid down in the European Convention on Human Rights.
The judge of freedoms controls the legality and the regularity of the
measures and ensures that the principles of necessity and
proportionality have been respected.An a posteriori check within
24 hours is, however, permitted in urgent cases, particularly when
evidence is likely to disappear, when an offence is being committed
or when the suspect is likely to evade justice.
3. A t the end of the preparatory stage, if the EDPP decides to bring the
case to court (of.Article 21w and w he notifies his decision to the
judge of freedoms, who seises the trial court in accordance with the
rules below (Article 26).
ERA - Forum
58
- 3 - 2001
Article 25ter
The European arrest warrant
I. The judge of freedoms, having examined the request of the EPP and
all evidence and information provided by the prosecutor, issues a
European arrest warrant when he considers this step to be justified.
The warrant bears the name of the person to whom it is addressed
and all other information necessary to identify him, as well as a
precise reference to the offence relating to the CorpusJuris which is
the ground for the arrest and a brief account of the facts alleged to
constitute the offence in question.
2. An arrested person is brought without delay to the judge of
freedoms of the state where he is being held.The judge of freedoms
checks that the warrant concerns the arrested person, that the
arrested person has been arrested according to a regular procedure
and that his rights have been respected, in accordance with the
procedure laid down in the Corpus Juris and in national law in
accordance with the principle of complementarity found in Article
35 of the Corpus.The arrested person has the right to ask the judge
of freedoms of the place where he is being held to be bailed until
transferred.
3. The judge of freedoms makes his decision in accordance with
national law and the European Convention on Human Rights. His
decision is appealable in national law, in application of the provisions
laid down in Article 35.
4. The European arrest warrant is granted by the judge of freedoms
upon application made by the EPP (cf.Article 20, para. 3g and Article
25ter). It is valid on the whole territory of the European Union.The
arrested person can be transferred onto the territory of the state
where his presence is needed (this applying to the preparatory stage
as well as the judgement stage),
S. In relation to legal co-operation that may be required from a third
state, national authorities have the power to transmit requests for
co-operation on behalf for the EPP.The practical details of cooperation will be governed by the international conventions that
apply between the third state and the state whose help the EPP
invokes.
Article 25quater
Coercive measures:judicialcontrol and pretrial custody
I. A person arrested or prosecuted in connection with the offences
defined above (Articles I to 8) can be subjected to coercive
measures such as remand in custody or placement under judicial
control.
2. These measures are ordered by the judge of freedoms, after the EPP
has informed him of the charges (cf. Article 20(3f)). The judge of
freedoms orders the measures when he has good reasons to
suspect that the accused person has committed one of the offences
defined above (Articles I to 8) and when he is convinced that such
a measure is necessary in order: to stop the accused person from
evading justice; or to stop a continuation or repetition of offences;
or to preserve evidence or prevent witnesses from being
pressurised.
3. The accused person shall be held in pre-trial custody only when all
other means of control appear insufficient, and only for a period
strictly justified by the grounds mentioned in (2). The maximum
duration for pre-trial detention is six months, renewable for three
months.
4. National authorities are bound to help with the execution of the
measures of judicial control ordered in other Member States and to
arrest and transfer accused persons not remanded in custody but
who when summoned had failed to appear.
ERA - Forum
/
- 3 - 2001
Decisions of the judge of freedoms concerning coercive measures

are appealable in so far as national law allows, in accordance with the
provisions contained in Article 35.

5~
3. When an issue or conflict such as this is raised in a case pending

before a national court whose decisions are not subject to appeal in
national law, this court is bound to seise the Court of Justice.
THE JUDGEMENT STAGE
COMMON PROVISIONS
Article 26 Trial
Article 29
Rights of the accused
h The offences set out above (Articles I to 8), are tried by national,
independent and impartial courts, appointed by each Member State
according to the rules on competence of the national law. The
courts must as far as possible consist of professional judges,
specialising wherever possible in economic and financial matters.
2. Each case is judged in the Member State which seems appropriate
in the interests of efficient administration of justice, any conflict of
jurisdiction being settled according to the rules set out hereafter
(Article 28).The principal criteria for the choice of jurisdiction are
as follows:
(a) the State where the greater part of the evidence is found;
(b) the State of residence or of nationality of the accused (or the
principal persons accused);
(c) the State where the economic impact of the offence is the greatest.
3. In application of the general rule on the complementarity of national
law (Article 35), national courts must refer to the rules in the
European Corpus and, whenever needed, those of national law.They
are bound in all cases to give grounds for the penalty by reference
to circumstances pertaining to the particular case, applying the rules
set out above (Articles 14 to 17).
Article 27
Appeal to national courts
I. Any conviction pronounced against a person declared guilty of one
of the offences set out above (Articles I to 8) must be subject to
appeal by the convicted person, leading to the case being retried, in
law and in fact, by a higher court of the State where the conviction
was pronounced at first instance; the higher court must apply, as the
court of first instance, the rules set out in the European Corpus and,
in the case of a lacuna, must apply national law.
2. In the case of total or partial acquittal, appeal is also open to the EPP
as a prosecutor.
3. In the case of appeal by the convicted person alone, the court seised
may not pronounce a stiffer penalty.
Article 28
Appeal to the European Court of Justice (ECJ)
I. The Court of Justice has jurisdiction to rule on offences as defined
above (Articles I to 8) in four cases:
(a) preliminary questions on the interpretation of the CorpusJuris and
of implementing measures;
(b) on the request of a Member State or the Commission on any
dispute concerning the application of the CorpusJuris;
(c) on the request of the EPP or a national legal authority on conflicts
of jurisdiction regarding application of the rules on the principle of
European territoriality, in relation to both national and European
prosecutors (Articles 18 to 24); on the request of the EPP on the
exercise of judicial control by national courts (Articles 25 to 27);
(d) on the request of the accused on the choice of jurisdiction of
judgement, within the meaning of Article 26(2).
2. When a question of interpretation is raised or a conflict of
jurisdiction brought before a court of one of the Member States, this
court may, if it considers that a decision on this point is necessary in
order to give its judgement, call on the Court of Justice to rule on
the issue.
I. A person may not be heard as a witness but must be treated as

accused from the point when any step is taken establishing,
denouncing or revealing the existence of clear and consistent
evidence of guilt and, at the latest, from the first questioning by an
authority aware of the existence of such evidence.
2. In any proceedings brought for an offence as set out above (Articles
I to 8), the accused enjoys the rights of the defence guaranteed by
Article 6 of the European Convention on Human Rights and Article
10 of the UN International Covenant on Civil and Political Rights.
Before any questioning takes place the accused must be informed of
his right to silence.
3. From the time of his first questioning, the accused has the right to
know the content of the charges against him.
Article 30
Rights of the Commissionas pattie civile
This article has been deleted.
Article 3 I
Burden of proof
I. Any person accused of one of the offences set out above (Articles
I to 8) is presumed innocent until his guilt has been established
legally by a final judgement which has acquired the authority of res
judicata.
2. Subject to the obligation to produce certain documents which may
be required under national or Community law, no person is obliged
to contribute, directly or indirectly, in establishing his own guilt.
Article 32
Admissible evidence
I. In Member States of the European Union, the following evidence is
admitted:
(a) testimony, either direct, or presented at the trial via an audio-visual
link, or recorded by the EPP in the form of a "European deposition'.
For the latter the witness must be examined before a judge, the
defence I~r~Ter must be present and allowed to ask questions, and
the operation must be recorded on video;
(b) questioning of the accused is either direct or recorded by the EPP
in the form of "European interrogation report'. For the latter the
questioning must take place before a judge, the accused must be
assisted by a defence lawyer of his choice (who has received the file
in good time and at the latest 48 hours before the questioning) and,
if necessary, by an interpreter; in addition, the operation must be
recorded on video;
(c) statements made by the accused, outside the interrogations
previously mentioned, provided that they have been made before
the competent authority (EPP or judge), that the accused has first
been informed of his right to silence and of his right to be assisted
by a defence lawyer of his choice, and that the statements have been
recorded in accordance with the law;
(d) documents presented by an expert, appointed by the competent
court from individuals or corporations appearing on a European list
approved by the Member States on the proposal of the EPR either
during the preparatory stage or at the beginning of the trial;
Case Law of the Community Courts
ERA.
60
Forum - 3 - 2001
(e) pre-existing documents that the accused has been required to

produce in a preliminary administrative investigation, as well as
documents produced by third parties.
2. These provisions do not exclude the validity of other forms of
evidence considered as admissible under the national law in force in
the State of the court of judgement.
Case Law of the Community Courts
Article 33
Exclusion of evidence illegally obtained
I. In proceedings for one of the offences set out above (Articles I to
8) evidence must be excluded if it was obtained by Community or
national agents either in violation of the fundamental rights
enshrined in the ECHR, or in violation of the European rules set out
above (Articles 31 and 32), or in violation of applicable national law
without being justified by the European rules previously set out; but
such evidence is only excluded where its admission would
undermine the fairness of the proceedings to admit it.
2. The national law applicable to determinate whether the evidence
has been obtained legally or illegally must be the law of the country
where the evidence was obtained.When evidence has been obtained
legally in this sense, it should not be possible to oppose the use of
this evidence becauseit was obtained in a way that would havebeen
illegal in the country of use. But it should always be possible to
object to the use of such evidence, even where it was obtained in
accordance with the law of the country where it was obtained, if it
has nevertheless violated rights enshrined in the ECHR or the
European rules (Articles 31 and 32).
Agriculture
Competition
Consumer Protection
Free Movement of Persons
Freedom to Provide Services
Intellectual Property
Judgements Convention
Law Relating to Undertakings
Social Policy
Staff Regulations
State Aid
Leading Judgments I st March 2001 to 31 st May 200 I

Editor: Richard Crowe, LL.M, Barrister
Contributors: Dr. Ludovic Bernardeau, LL.M.;
Richard Crowe, LL.M., Barrister; Sarah Jund, LL.M.;
Antonio Perez van Kappel, Mag. lur, Abogado
Agriculture
Cordis O b s t und G e m i i s e v C o m m i s s i o n (Case T- 18/99)
Court of First Instance (Fifth Chamber): 20 March 2001

Bananas - I m p o r t s f r o m A C P States and third countries Calculation
IV- COMPLEMENTARITYOF NATIONAL LAW

Article 35
Complementarity of national law with regard to the CorpusJuris
I. In order to applyArticles I to 8,the rules defined inArticles 9 to 34
are supplemented by national law,whenever necessary.The national
law applicable is that relating to investigations, to prosecution, to
judgement or to the execution of sentences,depending on the stage
the proceedings have reached.
2. As a complement to Articles 9 to 16,only the provisions of national
law more favourable to the accused person apply.
9
of annual
quantity
allocated
- Action
for
d a m a g e s - Admissibility - Possibility of relying on VV'I'O

rules
Article 34
Publicity and secrecy
I. Investigations carried out under the authority the EPP are secret
and authorities participating in these investigations are bound to
respect the rule of professional secrecy.
2. Hearings before the judge of freedoms may be published if all parties
consent to it, unless publicity would be likely either to harm the
smooth running of the investigation,or to damagethe interests of a
third party, or to endanger public order or morals.
3. The trial hearing must be held in public, but access to the court may
be denied to the press and the public, during all or part of the
proceedings, under the conditions stipulated in Article 6(I) ECHR.
Publicity may include recording and broadcasting the proceedings
audiovisually if the national law of the State concerned allows it, and
under the conditions it imposes.The judgement must in any case be
given publicly. Implementing provision The concept of professional
secrecy in wI must be understood in accordance with the applicable
national law (cf.Article 35).
page 60
page 6 I
page 62
page 63
page 64
page 64
page 65
page 65
page 66
page 67
page 68
Misuse
of
powers
General
principles
of
C o m m u n i t y law
The applicant fruit importer sought compensation from the

Commission under Article 215(2) of the Treaty for loss it suffered
as a result of a measure adopted by the Commission in
implementation of the controversial Council Regulation No. 404193
on the common organisation of the market in bananas. The
applicant pleaded inter alia infringement of certain agreements
contained in Annex I to the Agreement establishing the VV-I-O in
support of its action. In 1997, the Community arrangements for
banana imports were declared incompatible with theV~-O rules by
a decision of the Dispute Settlement Body. The applicant argued
that this also rendered illegal under Community law subsequent
measures adopted by the Commission with a view to implementing
the Community's banana regime.
This plea based on infringement of VVTO rules raised issues of
interpretation of Case C-149/96 Portugal v Council [1999] ECR 18395, in which the Court of Justice held that 'having regard to their
nature and structure, [all the agreements and memoranda
contained in Annexes I to 4 of the VV'I'O Agreement] are not in
principle among the rules in the light of which the Court is to
review the legality of measures adopted by the Community
institutions' (para 47). Consequently, the Court of First Instance
called upon the parties to this case to submit observations on the
possible consequences of that judgment.
The applicants argued that the WTO Agreement and the annexes
thereto constitute a genuine world trade order with its own legal
system and jurisdiction and that some of the provisions of chat new
law are directly applicable in Community law. Though
acknowledging that the Court of Justice held in Portugal v Council
that the VV-I'O provisions do not have general direct effect within
the Community legal system, the applicant argued here that the fact
the Community arrangements for banana imports had been
declared incompatible with the VV-I'O rules by a decision of the
Dispute Settlement Body and that the Community had undertaken

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Editorial Corpus Juris

At the seminar of 13.15 September which concluded the study,

The Protection of the Financial Interests of the

Christine Van den Wyngaert*

CHAPTER 2 - CRIMINAL RESPONSIBILITY

CHAPTER 4 - INVESTIGATION A N D PROSECUTION

CHAPTER 6 - PROCEDURAL RIGHTS

I See the reports at: http:/Iwww.era,int/domains/corDus-iuris/pubEc/index.htm:

3. Access to the evidence ~ charge by the defence

CHAPTER 10 - INTERNATIONAL COOPERATION

PROPOSALS FOR CONSIDERATION AT THE

APPENDIX: CORPUS JURIS 2000

The Protection of the Financial Interests

The Protection of the Financial Interests

represented in the study) and thirteen experts from the current

easy exercise, and the study pointed to important loopholes in the

acquis.The f o u r "Laeken proposals" that are made in conclusion

solution from a pragmatic point of view than the ratification and

T h e Protection of the Financial Interests

of the EU in the Candidate States

a future European Union composed of more than twenty member

This Chapter aims at examining whether the candidate states

The Protection of the Financial Interests

distinguishes between fraud affecting the revenue and fraud

Fraud affecting the financial interests of the EC has been defined

considered to be a form of deceptive behaviour.This seems to be

one single definition. Secondly, it also punishes "assimilated offences",

Market-rigging does not, as yet, belong to the acquis

The acquis on money laundering is very substantial: apart from

The Protection of the Financial Interests

laundering. Some, for example Romania, comply with the EU

The Protection of the Financial Interests

predicate offence2~.The expert notes that the same rule applies in a

The most important acquis-instrument on conspiracy is the EU

A great number of international instruments deal with

Additional Protocol to the PIF-Convention 26,which obliges member

Misappropriation of funds is a "Corpus Juris" offence~LThere is no

ERA - Forum. 3 - 2001

respect of the current member statesZg.The same seems to be true

Like misappropriation of funds, abuse of office is a Corpus Juris

Although the introduction of a specific offence regarding

The Protection of the Financial Interests

secrets but apply the traditional offence of professional secrecy

The Euro, introduced by Council Regulation No.974t98 of 3 May

T h e Protection of the Financial Interests

The reports of Professor Grasso and Dr. Sicurella reveal serious

and receiving, participation in a criminal organisation (conspiracy) and

misappropriation of funds by public o~dals, abuse of office, disclosure of

consider the protected interest to be both European and national.

Candidate states that have not yet (adequately) implemented the

The implementation of Corpus Juris offences referred to in

ERA - Forum - 3 - 2001

The offence of fraud by gross negligence should be retained in

A question for further examination is whether counterfeiting the

The Protection of the Financial Interests

The objective of this part of the study is to draw a picture of the