European Public Prosecutor’s Office (EPPO, in Dutch: EOM)

In fraud practice, we are seeing more and more cases that are headed by the European Public Prosecutor’s Office (EPPO) (in Dutch: EOM, or Europees Openbaar Ministerie). Investigation and prosecution in these cases are governed by slightly different rules. Fortunately, we know those rules and we can help you with this.

Background

Every year, crimes are committed that harm the financial interests of the European Union. Examples include (VAT) fraud, fraud involving EU subsidies and EU funding, and excise tax fraud. These criminal behaviors cause significant financial damage to the EU and its member states.[1] These criminal offenses often go across borders. Therefore, in 2017 an independent European Union prosecutor’s office was established to investigate and prosecute these offenses: the European Public Prosecutor’s Office (hereinafter: EPPO). The EPPO has been operational since March 2021 and is currently joined by 22 EU member states.

Task

The EPPO is responsible for investigating and prosecuting:

• Cross-border VAT fraud with minimum damages of € 10 million
• Other forms of fraud affecting the EU’s financial interests
• Corruption damaging or likely to damage EU financial interests
• Misappropriation of EU funds or assets by a public official
• Money laundering and organized crime[2], as well as other crimes inextricably linked to any of the preceding categories.

For offenses other than VAT fraud, the damage must basically exceed € 10,000. Below this threshold, the national authorities are authorized.

Organization and detection

The EPPO headquarters are located in Luxembourg. There you will find the Chief European Prosecutor, who is ultimately responsible for the EPPO as a whole, and the European Prosecutors[3] with a support staff. This is the central level of the EPPO which oversees the EPPO investigations and prosecutions.

Below the central level, the EPPO consists of a decentralized level of delegated prosecutors based locally in participating EU countries. In the Netherlands, for example, the EPPO is located with the Functioneel Parket in Rotterdam, where two delegated EPPO prosecutors work. As a rule, it will be the delegated prosecutors who conduct the investigation and prosecution in their EU countries.

Although a European Public Prosecutor’s Office has been established, there is no European Investigation Service, yet. Of course we do know ‘OLAF’: the European Anti-Fraud Office. This office plays a supporting role for the EPPO but has no powers for independent investigation in the member states. For their criminal investigations, the delegated prosecutors therefore use the local investigative authorities in their countries. In the Netherlands, the EPPO uses the FIOD and the Netherlands Food and Consumer Product Safety Authority (NVWA) for investigations.

How can the EPPO become aware of criminal offenses?

The EPPO can become aware of criminal offenses in different ways: through the public prosecutor, through OLAF, through national tax authorities, but also through citizens, companies or whistleblowers. The EPPO can also gather information itself, for example through the EPPO website, where anyone – including citizens and businesses – can report a suspected crime.

The Dutch Public Prosecutor’s Office has the obligation to inform the EPPO immediately when it becomes aware of a criminal offense that may fall under the jurisdiction of the EPPO. In that case, the EPPO takes over the investigation and the Dutch PPO withdraws itself.

Under the Protocol for the notification and settlement of tax crimes in the area of customs and benefits (Protocol AAFD 2023), the same obligation applies to the Tax and Customs Administration. If an inspector suspects a criminal offense for which the EPPO is authorized, for example during an audit, the inspector reports this to the EPPO. For more information on the AAFD 2023 Protocol, see Vincent Leenders‘ blog. Based on such a signal, the delegated prosecutor may decide to start a criminal investigation.

Finally, international information exchange is an important source of information for the EPPO. Great strides are being made within the EU in the area of data exchange. For more information on this subject, see Lisa van Esdonk-Bongaarts‘ blog.

Prosecution

Whereas the Public Prosecution Office itself has the authority to decide whether or not to criminally prosecute a case (the so-called expediency principle), the EPPO adheres to the legality principle. This means that all suspicions of a criminal offense must be investigated with EU funding. The delegated prosecutor will then inform the central level of the EPPO whether to prosecute the case or not. A permanent chamber of the EPPO takes the final decision on the matter. The reasons for dismissing a case before the EPPO are exhaustively listed in the regulation. Unlike a ‘strictly Dutch’ case, there is thus less freedom in an EPPO case for extrajudicial settlement or dismissal.

If a case proceeds to prosecution, it will be brought before a national court designated for that purpose. In fact, just as there is no European Investigation Service yet, there is also no European criminal court. The following courts have been designated for Dutch EPPO cases: Amsterdam, Rotterdam, Zwolle and Den Bosch.

EPPO in practice

By the end of 2022, 1,100 EPPO investigations were underway. Our firm now also often encounters the EPPO. We see cases in the area of money laundering and corruption as well as VAT fraud. These are all cases in which the FIOD conducts the investigation on behalf of the EPPO. It should be noted that the FIOD official must be authorized to do so by the delegated prosecutor, after which they carry out the investigation together and in mutual consultation.

If it appears from a letter or for example from a confiscation order that you are dealing with the EPPO, please feel free to contact one of our lawyers.

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[1] Regulation (EU) 2017/1939 of the Council dated 12 October 2017.

[2] Organized crime is readily apparent. In fact, according to the European directive, an “organized context” is already present when offenses are committed by more than one person.

[3] Each European prosecutor within the EPPO oversees cases done in its own country.