This article explains Ireland’s experience with requests for judicial cooperation from the European Public Prosecutor’s Office (EPPO).

In a letter to the European Commission dated 23 November 2022, Laura Codruța Kövesi, the European Chief Prosecutor, noted that Ireland, in practice, has been consistently rejecting the EPPO’s requests for judicial cooperation since the start of its operations on 1 June 2021. She expressed concern that the EPPO cannot obtain evidence located in Ireland and that this hinders the EPPO’s ability to counter criminality, affecting the European Union’s budget.

EPPO Explained

The EPPO assumes its investigative and prosecutorial tasks under Council Regulation (EU) 2017/1939. It is an independent public prosecution office of the European Union. Its tasks encompass investigating and prosecuting so-called PIF crimes against the financial interests of the EU (from the French acronym: ‘La Protection des Intérêts Financiers de l’Union’) as defined in Directive (EU) 2017/1371 (PIF Directive) and as implemented by national law, including the following:

• cross-border VAT fraud involving total damages of at least €10m;
• other types of fraud affecting the EU’s financial interests;
• corruption that damages, or is likely to damage, the EU’s financial interests;
• misappropriation of EU funds or assets by a public official;
• money laundering, organised crime, and other offences inextricably linked to one of the previous categories.

The EPPO is responsible for undertaking investigations of the above crimes, carrying out acts of prosecution and exercising the functions of prosecutor in the competent courts of the participating EU Member States. It may either act ex officio or follow up on criminal offences reported to it. In its first year of operation, the EPPO received 4006 crime reports from national authorities, private parties, EU institutions, bodies, organisations, and agencies. A further 13 crime reports were registered ex officio by the European Delegated Prosecutors (EDPs). These 4019 crime reports led to 929 investigations, 28 indictments and four convictions. Members of the public may report a relevant crime using the “Report a Crime” web form. If the EPPO decides to open an investigation, it is EDPs, at least two per participating EU Member State, who carry out investigations and prosecutions at the national level.

To investigate and prosecute PIF crimes, the EPPO works with the European Commission, OLAF (from the French acronym: Office Européen de Lutte Antifraude, the European Anti-Fraud Office), Eurojust, Europol, the European Investment Bank, and the European Investment Fund among others. It also relies on the cooperation of non-participating EU Member States. According to Laura Codruța Kövesi, the European Chief Prosecutor, Ireland’s cooperation in this regard has been lacking.

Ireland’s Non-Participation in EPPO

Ireland is one of five EU Member States that do not participate in the EPPO. In a Dáil Éireann debate on 27 January 2021, James Browne, Minister of State at the Department of Justice, explained Ireland’s reluctance concerning the EPPO as follows:

In considering Ireland’s participation in the EPPO, it is important to note that the development of a supranational investigative and prosecution authority, even one with a relatively limited scope, presented particular difficulties in an Irish context. The fundamental difficulty that arises is that the Irish courts would not be entitled to exclude unconstitutionally obtained evidence. Under the EPPO regulation, evidence would potentially be admissible based on other member states’ legal regimes and on the regulation itself. More generally, challenges arose in how the EPPO structures would have interacted with our common law regime and how institutions and practices have evolved. The EPPO [was] built primarily from a civil law base.

Ireland’s non-participation in the EPPO notwithstanding, Ireland is still obliged to cooperate with the EPPO under existing mechanisms such as the Convention on Mutual Assistant in Criminal Matters between the Member States of the European Union and the European Arrest Warrant (Framework Decision 2002/584/JHA).

Legal Position in Ireland

It is important to emphasise that PIF crimes can and are investigated and prosecuted in Ireland. The PIF Directive has been implemented in Ireland under the Criminal Justice (Corruption Offences) Act 2018 and the Criminal Justice (Theft and Fraud Offences) (Amendment) Act 2021. PIF crimes in Ireland are therefore dealt with by the relevant agencies within the Irish criminal justice system, such as An Garda Síochána and the Director of Public Prosecutions.

Ireland has been active in combating white-collar crime, as the recent establishment of the Corporate Enforcement Authority (CEA) demonstrates. The CEA was established on foot of a report on structures and strategies to prevent, investigate and penalise economic crime and corruption by a multi-agency Review Group, chaired by Mr James Hamilton, former Director of Public Prosecutions. Access our previous articles on the CEA and the Hamilton Review Group Report here, here and here.

Contributed by Niamh McCabe & Sonja Heppner