Abstract
This article assesses the application of the EPPO apparatus in the Cypriot legal system and demonstrates its ability to challenge and transform basic constitutional principles of criminal enforcement in the island. The discussion begins with some crucial reflections on the EPPO’s structure and mission in the Union configuration, which contextualise the ensuing narration. That is followed by a succinct analysis of the prevailing principles of the Cyprus investigative and prosecutorial regime, which improves our appreciation of its specificities. Next the most salient aspects of the implementing legislation are thoroughly explored, thus unveiling the conceptual disposition of the Cypriot administration and legislature towards the EPPO transplant. The inquiry proceeds with consideration of the difficulties raised by the EPPO’s cohabitation with the domestic prosecutorial authority. The article concludes with a brief remark on future EPPO related litigation.
Introduction
The European Public Prosecutor’s Office (hereinafter ‘EPPO’) constitutes a noteworthy novelty in the constantly evolving field of EU criminal law. That hybrid paradigm of criminal investigation and prosecution, ambitiously combining centralised features at Union level with decentralised components in national environments, has legitimately arouse academic curiosity and has effortlessly sparked the creation of a body of literature that is rapidly expanding in volume, diversity, complexity and prominence. While the inception, birth and function of the EPPO regime have been the subject of penetrating political and academic debate, its reception by the participating national legal orders and the challenges it poses to the domestic rules of investigative and prosecutorial convention have not thus far received their due share of scholarly attention. The ambition of this article is to shrink the emerging deficit of research and commentary by assessing the application of the EPPO apparatus in the Cypriot legal system and demonstrating its ability to challenge and transform basic constitutional principles of criminal enforcement in the island.
The discussion begins with some crucial reflections on the EPPO’s structure and mission in the Union configuration, which contextualise the ensuing narration. That is followed by a succinct analysis of the prevailing principles of the Cyprus investigative and prosecutorial regime, which improves our appreciation of its specificities. Next the most salient aspects of the implementing legislation are thoroughly explored, thus unveiling the conceptual disposition of the Cypriot administration and legislature towards the EPPO transplant. The inquiry proceeds with consideration of the difficulties raised by the EPPO’s cohabitation with the domestic prosecutorial authority. The article concludes with a brief remark on future EPPO related litigation.
The EPPO regime
EPPO is a fascinating creature, whose eventual shape has been moulded incrementally over the years since its inception. 1 Its roots can be traced back to 1995 when during a meeting of the Presidents of the European Criminal Law Associations at Urbino University in Italy, the idea of developing rules on criminal law protection of the EU’s financial interests within the context of a single European legal environment was first aired. Two years later, in 1997, a group of experts delivered a report entitled ‘Corpus Juris: Introducing penal provisions for the purpose of the financial interests of the European Union’, which put forward the proposal for the birth of a European Public Prosecutor. In December 2001, the European Commission issued its Green Paper on criminal-law protection of the financial interests of the Community, and the establishment of a European Prosecutor, which explored practical ways to bring the EPPO project to fruition. 2 In 2007 the Lisbon Treaty acted as catalyst for further developments by inserting into the Treaty of the Functioning of the European Union Article 86, which served as the legal basis for the EPPO’s genesis. 3 In July 2013, the European Commission tabled its Proposal for a Council Regulation on the establishment of the EPPO, which sparked extensive political and academic debate focusing mainly on the (de)centralised nature of the supranational creature and its powers to upset established rules of national investigative and prosecutorial conduct. 4 The EPPO was finally established in October 2017 by Council Regulation 2017/1939 (hereinafter ‘EPPO Regulation’) and commenced operations on 1 June 2021. 5
The current EPPO model bears extensive decentralised features compared to the prototype envisaged in the 2013 proposal of the European Commission. 6 As a result, its organisational structure is bilayered. 7 The central, Union level comprises the European Chief Prosecutor; twenty two European Prosecutors (one per participating Member State), two of whom act as Deputies for the European Chief Prosecutor; and the Administrative Director. The European Chief Prosecutor and the European Prosecutors make up the College of the EPPO, whose main task is to safeguard the efficiency and consistency of the EPPO’s policy and activity. The decentralised, national level is composed of the European Delegated Prosecutors (EDPs) in the twenty two participating EU Member States. EDPs are empowered to carry out investigations and prosecutions in domestic legal orders with complete independence from the national authorities. The activity of each EDP is centrally supervised by a permanent chamber, composed of three European Prosecutors each, who may instruct the EDP how to proceed in any instant case. The procedural acts of the EPPO are subject to judicial review by the competent national courts. Authoritative judicial guidance on the application of the EPPO apparatus can be sought by the Court of Justice of the European Union by way of preliminary rulings under Article 267 TFEU, direct challenges under Article 263 TFEU or damages actions under Articles 268 and 340 TFEU.
The novelty of the EPPO machinery is its ability to intrude into the national criminal law environments and initiate investigative and prosecutorial activity independently from the competent domestic actors. However, that formidable power can only be exercised in relation to crimes falling within the material competence of the EPPO. Those crimes are defined in Directive 2017/1371 on the fight against fraud to the Union’s financial interests by means of criminal law (PIF Directive) 8 and can be usefully categorised as follows: (i) cross-border VAT fraud involving total damages of at least EUR 10,000,000; (ii) other types of fraud affecting the EU’s financial interests; (iii) corruption that damages, or is likely to damage, the EU’s financial interests; (iv) misappropriation of EU funds or assets by a public official; and (v) money laundering and organised crime, as well as other offences inextricably linked to one of the previous categories. The notion of ‘financial interests of the EU’ is interpreted expansively and incudes all revenues, expenditures and assets covered by, acquired through, or due to the European Union budget, as well as the budgets of the institutions, bodies, offices and agencies established under the Treaties, and budgets managed and monitored by them. To date EPPO has registered more than 4100 crime reports and initiated over 1900 investigations for an estimated damage in excess of €19,2 billion. As regards Cyprus, ten (10) investigations are currently under way for an estimated damage of €115 million. No EPPO related case law exists thus far in Cyprus.
The Cyprus investigative and prosecutorial ethos
The investigative and prosecutorial universe in Cyprus is forcefully dominated by the imposing presence of a single, weighty figure, i.e. the Attorney General of the Republic. The establishment of the office is traced back to 1878, when the island was first placed under British control. 9 The source of the Attorney’s General supreme authority is constitutional. Pursuant to Articles 112 and 113 of the Cyprus Constitution, the Attorney General is heading the Law Office of the Republic and is appointed by the President of the Republic from amongst lawyers of high professional and moral standard. He/she holds office and may be dismissed under the same terms and conditions as a judge of the High Court. The Attorney’s General role in the domestic constitutional setting is crucial and multifaceted. He/she, inter alia, provides legal advice to all governmental departments; represents the Republic in court proceedings; assumes ex officio the presidency of the Legal Board, of the Advocates Disciplinary Board and of the Board of the Advocates’ Pension Fund; recommends to the President of the Republic the suspension, remission or commutation of any sentence passed by a court in the Republic, etc.
Two aspects of the Attorney’s General mighty institutional authority are of particular pertinence and importance for the present discussion. The first relates to the existence of a special power: the Attorney General, either personally or through agents acting under and in line with his/her instructions, is constitutionally entitled to institute, conduct, take over and continue or discontinue any proceedings for a criminal offence against any person in the Republic. 10 The second aspect that merits attention concerns the exercise of the aforementioned enviable power: the Attorney General may proceed to any of the above adumbrated courses of action in the public interest at his/her complete discretion, without having to provide any reasons and without being subject to any form of parliamentary or judicial review. 11 The privileged constitutional treatment of the Attorney General in the domain of criminal procedure law becomes readily apparent and is further reflected directly in the way in which investigations and prosecutions are practically conducted in the island, a theme which shall next turn.
It is neither necessary nor desirable to describe here in full detail the pre-trial phase of the domestic criminal proceedings. Extensive technical analysis would mask substance and baffle the reader. It is methodologically more helpful to make a simple distinction between investigation and prosecution, and highlight the Attorney’s General practical role in each of them. As regards investigations, they normally commence by the Police acting on their own initiative (proactively) or following a private complaint or the Attorney’s General instructions (reactively). Sectoral legislation may grant investigative capacity to other public authorities, such as the Unit for Combating Money Laundering and the Customs and Excise Department. 12 The available investigative toolkit is rich and diverse. It includes interrogations, access to documents, search warrants and orders for the surrender of genetic material, for the disclosure of telecommunications data or banking data, etc. 13 The Attorney’s General presence looms heavy over the whole stretch of the investigative effort: he/she has the final, decisive and non-reviewable verdict on whether and when the criminal investigation is initiated; how it is practically conducted and which investigative techniques are employed; if it is extended; and when it is concluded.
The Attorney’s General influential role extends to prosecutions. Once the public investigation is over, the collected evidential material is submitted to the Attorney General, who determines whether the case will eventually reach the criminal judge. Even after the prosecution has commenced and at any time before the judgment is delivered, the Attorney General is entitled to register a stay of prosecution with the competent criminal court, which directly leads to the termination of the proceedings. 14 There also might be instances where the prosecution is initiated independently from the Attorney General. A typical example of private prosecution involves an individual or entity that has fallen victim to theft, fraud, forgery, violation of intellectual property, breach of personal data etc. filing a lawsuit directly with the competent criminal court parallel with or in place of civil litigation. 15 It is obvious that in the realm of private prosecution the Attorney General is sidestepped as regards its initiation. However, by virtue of his/her powers under Article 113 of the Cyprus Constitution he/she has the unquestionable authority to take over the undergoing private prosecution and continue it, suspend it or drop it altogether at any stage. It follows that, as is the case with investigations, the Attorney General is the undisputed protagonist of prosecution, be it public or private.
The implementing legislation: the basic law
The established wisdom in Cyprus as regards the implementation of EU Regulations dictates that their provisions are in principle directly effective and are therefore complemented by a limited number of national provisions only where further clarification is desirable or necessary, e.g. designation of the national authorities competent to implement the Regulation at issue, determination of their powers and resources etc. 16 That approach has also been faithfully followed with the EPPO Regulation. The main implementing measure is Law 2(I)/2021 entitled ‘Implementation of Council Regulation (EU) 2017/1939 of 12 October 2017 on the Implementation of Enhanced Cooperation for the Establishment of the European Public Prosecutor’s Office’ (hereinafter ‘Law 2(I)/2021’). 17
As regards procedure, the original bill was drafted by the Ministry of Justice and Public Order and was subsequently dispatched to the Law Office of the Republic for technical and legal vetting. It was then introduced to the Council of Ministers for approval, which was eventually granted on 7 May 2020. 18 The Ministry of Justice and Public Order submitted the approved bill to the House of Representatives on 18 May 2020 and a few days later, on 22 May 2020, the Plenary of the House of Representatives assigned the examination of the bill to the Committee on Legal Affairs. 19 The said Committee discussed the bill in its sessions of 9 September 2020 and 2 December 2020, and oral input was provided by the Commissioner for Personal Data Protection, the Ministry of Justice and Public Order, and the Law Office of the Republic. The final report of the Committee on Legal Affairs was issued on 8 January 2021 proposing no substantial modifications expect for the insertion of a new provision designating the Commissioner for Personal Data Protection as the national authority competent to cooperate with the European Data Protection Supervisor under Article 87 of the EPPO Regulation. 20 In its session of 14 January 2021 the Plenary of the House of Representatives endorsed the Report of the Committee on Legal Affairs and the bill was passed into law (i.e. Law 2(I)/2021) with twenty-four votes for, sixteen votes against and no abstentions. 21 It is noteworthy that the bill was not debated at all in the Plenary due to lack of willing speakers. Law 2(I)/2021 was subsequently notified to the President of the Republic and took effect upon its publication in the Official Gazette of the Republic on 27 January 2021.
As regards structure, Law 2(I)/2021 is spatially unassuming, struggling to reach a mere three-page length. It comprises ten articles which complement specific provisions of the EPPO Regulation. Articles 1 and 2 provide for the official title of Law 2(I)/2021 and the definition of the terms employed therein. Article 3 designates the Attorney General of the Republic as the component authority for the implementation of the EPPO Regulation. Articles 4 and 5 regulate the appointment, dismissal and competences of the European Delegated Prosecutor in Cyprus. Articles 6 and 7 address various practicalities of the cooperation between the Attorney General and the EPPO, such as reporting obligations for the purpose of evocation under Article 27 of the EPPO Regulation. Article 8 designates the Commissioner for Personal Data Protection as the national supervisory authority under Article 87 of the EPPO Regulation. Articles 9 and 10 are enabling provisions authorising the Council of Ministers and the Minister of Justice and Public Order to enact further measures to facilitate the application of the EPPO Regulation and Law 2(I)/2021 in the Cypriot legal space.
As regards substance, the above adumbrated institutional predominance of the Attorney General in the domestic investigative and prosecutorial sphere is loyally reflected in the resulting legislative text. It is not therefore fortuitous that the Attorney General is appointed as the sole competent authority for the overall implementation of the EPPO Regulation in the island. 22 That generic pronouncement is further exemplified in various themes regulated by Law 2(I)/2021. Thus, it is the Attorney General who nominates the candidate for the position of European Delegated Prosecutor in Cyprus amongst officials of the Law Office he/she is heading. 23 The appointed European Delegated Prosecutor remains an active member of the Law Office until his/her dismissal and may exercise duties as a legal officer of that Office in parallel with his/her tasks under the EPPO Regulation. 24 The Attorney General is also granted monopoly in consultations with the EPPO or the supervising European Prosecutor, as the case may be. 25 In addition, it is the Attorney’s General consent that must be obtained before the EPPO can exercise its competence under Article 25(4) of the EPPO Regulation. 26 Furthermore, he/she becomes the only and final arbiter of disputes between the EPPO and himself over the attribution of competence within the context of Article 25(6) of the EPPO Regulation. 27 Finally, the Attorney General is designated as the exclusive source of information for the EPPO as regards reporting pursuant to Article 24 of the EPPO Regulation. 28
The implementing legislation: the amending law
Law 2(I)/2021 was amended by Law 61(I)/2024. Again the original bill was proposed by the Ministry of Justice and Public Order and sent to the Law Office of the Republic for the standard vetting. The Council of Ministers approved the bill on 7 February 2024 and the Ministry of Justice and Public Order submitted the approved bill to the House of Representatives on 15 February 2024. The examination of the bill was assigned by the Plenary of the House of Representatives to the Committee on Legal Affairs on 22 February 2024. The above Committee discussed the bill in its sessions of 6 and 20 March 2024, and 10 April 2024 and produced its report on 22 April 2024 proposing minor amendments. 29 The bill became law (i.e. Law 61(I)/2024) with sixteen votes for, no votes against and seven abstentions on 25 April 2024. No debate took place in the Plenary of the House of Representatives prior to the voting. 30 Law 61(I)/2024 took effect upon its publication in the Official Gazette of the Republic on 10 May 2024. It adds five new provisions to preexisting Law 2(I)/2021. The rationale and scope of the newly inserted provisions can be more appropriately understood through an analysis of the motives which induced their adoption.
The amendments brought about by Law 61(I)/2024 were motivated in part by the desire to facilitate further the implementation of the EPPO Regulation in the domestic legal order and in part by the need to safeguard legal certainty and clarify the symbiotic relationship between the EPPO and the Attorney General. The newly inserted Articles 5A and 8A of Law 2(I)/2021 are telling examples of the first, facilitative aspect of the amending legislation. More precisely, Article 5A of Law 2(I)/2021 complements the application of Article 5(6) of the EPPO Regulation by inter alia stipulating that every competent authority in the Republic, including the Chief of Police, the Commissioner of Taxation, the Director General of the Customs and Excise Department, and the Head of the Unit for Combating Money Laundering, are obliged to actively assist and support, when so requested, the EPPO in its criminal investigations and prosecutions. 31 Within the same logic, Article 8A of Law 2(I)/2021 supports the implementation of Articles 53, 81 and 87 of the EPPO Regulation by ensuring that the collection and processing of personal data for the purpose of Law 2(I)/2021 must be compliant with the provisions of Law 44(I)/2019, which transposes Directive (EU) 2016/680. 32
The second aspect of the amending legislation, which pertains to legal certainty, merits particular attention as it seeks to dispel two institutional misconceptions of constitutional importance. The first pertains to the Attorney’s General privileged status in the opening of criminal case files and its contradiction with the dictates of Article 45(1) of the EPPO Regulation. Under that provision, where the EPPO decides to open an investigation (Article 26 of the EPPO Regulation) or exercise its right of evocation (Article 27 of the EPPO Regulation), the handling European Delegated Prosecutor shall open a case file. Article 5(2)(b) of Law 2(I)/2021 complements Article 45(1) of the EPPO Regulation by stating that the European Delegated Prosecutor shall be in charge of the criminal investigation and be responsible for prosecuting criminal offences falling within the material competence of the EPPO. However, it is recalled that under Article 113 para. 2 of the Cyprus Constitution only the Attorney General or the prosecutor under his/her command is institutionally vested with such a power. 33 Thus, it could be argued that in Cyprus the handling European Delegated Prosecutor may not open a case file unless the relevant permission is previously granted by the Attorney General.
The second institutional misunderstanding is linked to Article 36(7) of the EPPO Regulation. Pursuant to that provision, where, following a judgment of the Court, the prosecution has to decide whether to lodge an appeal, the European Delegated Prosecutor may under certain conditions lodge the appeal without awaiting relevant instructions from the Permanent Chamber that supervises his/her activity. The same applies when, in the course of the court proceedings and in accordance with applicable national law, the handling European Delegated Prosecutor wishes to take a position that would lead to the dismissal of the case. As regards appeals, Article 113 para. 2 of the Cyprus Constitution in conjunction with Article 137 of the Law on the Criminal Procedure (CAP 155) confers the relevant power to the Attorney General, who is the only competent authority to lodge such an appeal himself/herself or allow such an appeal to be lodged by someone else. As regards dismissals, again Article 113 para. 2 of the Cyprus Constitution grants that power only to the Attorney General or the prosecutor under his/her command. It could be assumed that in Cyprus the handling European Delegated Prosecutor may only proceed to any of the above courses of action, if the Attorney General gives his/her authorisation.
Neither of the above approaches is true. The primacy of European Union law over conflicting national provisions is a well-established principle of the Union legal space. That is further reiterated in Articles 1A and 179 of the Cyprus Constitution, which cloak EU law with supraconstitutional authority. 34 It follows that the provisions of the EPPO Regulation and the national laws complementing its implementation take precedence over any conflicting domestic provisions, including Article 113 of the Cyprus Constitution. However, in the light of the long-standing powerful presence of the Attorney General in the Cypriot criminal justice, which appears to be deeply ingrained in the domestic investigative and prosecutorial ethos, the need was felt to clarify in explicit and unequivocal terms that within the material scope of the EPPO legislation the leading and decisive role is assigned to the EPPO and not the Attorney General. That landmark shift of institutional power is evident in the newly inserted Articles 6A and 6C of Law 2(I)/2021. Those provisions ensure that, notwithstanding the provisions of the Criminal Procedure Law and the Courts Law, for the purposes of applying the EPPO Regulation the criminal investigations and prosecutions within the Republic, including the discontinuation of criminal proceedings, are conducted by the EPPO either through the European Delegated Prosecutor or the European Prosecutor, as the case may be. In addition, the term ‘Attorney General of the Republic’ is replaced by the term ‘EPPO’ in the national substantive and procedural legislation applying to cases which fall within the jurisdiction of the EPPO. 35
The symbiotic challenges
National environments are inclined to resist institutional novelties originating from superimposed layers of governance. That is all the more so when the incoming supranational transplant possesses features formidable enough to challenge fundamental concepts of the domestic legal wisdom. Cyprus does not appear to have completely escaped that axiom. The need to introduce amending legislation to reiterate EPPO’s precedence over its Cypriot counterpart within the material scope of the EPPO Regulation three years after the initial implementing legislation is indicative of the prevailing institutional inertia. In addition, on close inspection the island’s vision of supranational criminal proceedings shows at least three areas of possible tension with the original EPPO prototype.
The first difficulty relates to the Attorney’s General competence to decide on the attribution of competence under Article 25(6) of the EPPO Regulation. According to that provision in the case of any disagreement between the EPPO and the national prosecution authority over the question of competence under Articles 22 and 25 of the EPPO Regulation, the relevant decision will be made by the national authority competent to decide on the attribution of competence concerning prosecution at national level. In Cyprus Article 6(4) of Law 2(I)/2021 designates the Attorney General as the relevant competent national authority. The oxymoron of the emerging configuration is evident: the arbiter of the dispute is also a party thereof. In addition, under the prevailing constitutional dogma, the Attorney’s General decision on the attribution of competence is not judicially challengeable and it is therefore questionable whether a domestic criminal court, before which the question of competence is raised, would be willing to send to the Court of Justice a preliminary reference as contemplated by Article 42(2)(c) of the EPPO Regulation. 36 With the above given, it would be helpful if Article 6(4) of Law 2(I)/2021 was amended to the effect that it conferred the power to attribute the disputed competent to another institutional actor. A possible candidate could be the Cyprus Supreme Court, which also qualifies as ‘court or tribunal’ for the purposes of Article 267 TFEU on preliminary references. 37
The second challenge concerns the Attorney’s General reporting obligations under Article 24 of the EPPO Regulation. That provision requires the authorities of the Member States competent under applicable national law to report without undue delay to the EPPO any criminal conduct in respect of which the latter could exercise its competence. 38 In addition, when a judicial or law enforcement authority of a Member State initiates or already conducts an investigation in respect of a criminal offence for which the EPPO could exercise its competence, that authority must without undue delay inform the EPPO accordingly so that the latter can decide whether to exercise its right of evocation. 39 What is more, when a judicial or law enforcement authority of a Member State initiates an investigation in respect of a criminal offence and considers that the EPPO could not exercise its competence, it must inform the EPPO thereof. 40 It is important to note that the above adumbrated obligations are incumbent upon all competent national authorities, who must report directly to the EPPO. However, Article 7 of Law 2(I)/2021, which complements the implementation of Article 24 of the EPPO Regulation, mentions only the Attorney General as a national authority that can communicate with the EPPO for the aforementioned purposes. Thus, the existing wording of Article 7 of Law 2(I)/2021 leaves the door open to interpretations that would require other Cypriot competent authorities, such as the police or the Unit for Combating Money Laundering, to report to the Attorney General, who would then relay that information to the EPPO. That would create a ‘Chinese Whispers’ structure, which defeats the direct and pluralistic logic of Article 24 of the EPPO Regulation. A revision of Article 7 of Law 2(I)/2021 to the effect that it includes all national competent authorities would provide the much needed interpretative clarity and is therefore welcome.
The final possible tension with the EPPO model relates to Article 96(6) of the EPPO Regulation. That provision introduces a number of guarantees for the European Delegated Prosecutors as regards their career and status in the national prosecution system: (i) the European Delegated Prosecutors must be provided with the resources and equipment necessary to exercise properly their functions, (ii) the general working conditions and work environment of the European Delegated Prosecutors falls under the responsibility of the competent national judicial authorities, and (iii) adequate arrangements must be in place so that the European Delegated Prosecutors’ rights relating to social security, pension and insurance coverage under the national scheme are maintained. In Cyprus there currently exists no legal framework which ensures the attainment of the objectives under points (i) and (ii) above and it is questionable whether the direct applicability of the EPPO Regulation suffices for their effective implementation. The introduction of national legislation explicitly providing the aforementioned guarantees would remove any uncertainty and would therefore be desirable.
Conclusion
The EPPO and its reception by the participating legal orders are a fascinating field of academic inquiry. The preceding analysis improves our knowledge and understanding of the type of challenges that might arise from the EPPO’s cohabitation with its national peers in Europe’s area of criminal enforcement. The discussion becomes even more interesting when it is realised that Cyprus is the only common law jurisdiction in the EPPO zone. However, it should not be excluded that tensions of the sort identified above might also arise in other legal environments with different constitutional traditions and institutional configurations. It is hard to deny that the existing hybrid model of investigation and prosecution, with the EPPO operating largely on the basis of national law and under the jurisdiction of national courts, challenges the established orthodoxy of domestic criminal law doctrine and practice and exerts unwelcome pressure on privileged institutional actors in the realm of national criminal justice. That will in turn generate litigation before the national and European courts, whose judgements will not only contribute to the development of EU criminal law but will also structure much of the related debate and analysis in the future.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
