31.10.2017

EN

Official Journal of the European Union

L 283/1

COUNCIL REGULATION (EU) 2017/1939

of 12 October 2017

implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 86 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the notification by Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Germany, Finland, France, Greece, Lithuania, Luxembourg, Portugal, Romania, Slovakia, Slovenia and Spain, by which those Member States on 3 April 2017 notified the European Parliament, the Council and the Commission of their wish to establish enhanced cooperation on the basis of the draft Regulation,

Having regard to the consent of the European Parliament (1),

Acting in accordance with a special legislative procedure,

Whereas:

(1)

The Union has set itself the objective of establishing an area of freedom, security and justice.

(2)

The possibility of setting up the European Public Prosecutor’s Office (‘the EPPO’) is foreseen by the Treaty on the Functioning of the European Union (TFEU) in the Title concerning the area of freedom, security and justice.

(3)

Both the Union and the Member States of the European Union have an obligation to protect the Union’s financial interests against criminal offences, which generate significant financial damages every year. Yet, these offences are currently not always sufficiently investigated and prosecuted by the national criminal justice authorities.

(4)

On 17 July 2013, the Commission adopted a proposal for a Council Regulation on the establishment of the EPPO.

(5)

At its meeting of 7 February 2017, the Council registered the absence of unanimity on the draft Regulation.

(6)

In accordance with the second subparagraph of Article 86(1) TFEU, a group of seventeen Member States requested, by a letter of 14 February 2017, that the draft Regulation be referred to the European Council.

(7)

On 9 March 2017, the European Council discussed the draft Regulation and noted that there was disagreement within the meaning of the third subparagraph of Article 86(1) TFEU.

(8)

On 3 April 2017, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Finland, France, Germany, Greece, Lithuania, Luxembourg, Portugal, Romania, Slovakia, Slovenia and Spain notified the European Parliament, the Council and the Commission that they wished to establish enhanced cooperation on the establishment of the EPPO. Therefore, in accordance with the third subparagraph of Article 86(1) TFEU, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union (TEU) and Article 329(1) TFEU is deemed to be granted and the provisions on enhanced cooperation apply as from 3 April 2017. In addition, respectively by letters of 19 April 2017, 1 June 2017, 9 June 2017 and 22 June 2017, Latvia, Estonia, Austria and Italy indicated their wish to participate in the establishment of the enhanced cooperation.

(9)

In accordance with Article 328(1) TFEU, when enhanced cooperation is being established it is to be open to all Member States of the European Union. It is also to be open to them at any other time, including with regard to an enhanced cooperation in progress subject to compliance with the acts already adopted within that framework. The Commission and the Member States which participate in enhanced cooperation on the establishment of the EPPO (the ‘Member States’) should ensure that they promote participation by as many Member States of the European Union as possible. This Regulation should be binding in its entirety and directly applicable only in the Member States which participate in enhanced cooperation on the establishment of the EPPO, or by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) TFEU.

(10)

In accordance with Article 86 TFEU, the EPPO should be established from Eurojust. This implies that this Regulation should establish a close relationship between them based on mutual cooperation.

(11)

The TFEU provides that the material scope of competence of the EPPO is limited to criminal offences affecting the financial interests of the Union in accordance with this Regulation. The tasks of the EPPO should thus be to investigate, prosecute and bring to judgment the perpetrators of offences against the Union’s financial interests under Directive (EU) 2017/1371 of the European Parliament and of the Council (2) and offences which are inextricably linked to them. Any extension of this competence to include serious crimes having a cross-border dimension requires a unanimous decision of the European Council.

(12)

In accordance with the principle of subsidiarity, combatting crimes affecting the financial interests of the Union can be better achieved at Union level by reason of its scale and effects. The present situation, in which the criminal prosecution of offences against the Union’s financial interests is exclusively in the hands of the authorities of the Member States of the European Union, does not always sufficiently achieve that objective. Since the objectives of this Regulation, namely, to enhance the fight against offences affecting the financial interests of the Union by setting up the EPPO, cannot be sufficiently achieved by the Member States of the European Union, given the fragmentation of national prosecutions in the area of offences committed against the Union’s financial interests but can rather, by reason of the fact that the EPPO is to have competence to prosecute such offences, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives and ensures that its impact on the legal orders and the institutional structures of the Member States is the least intrusive possible.

(13)

This Regulation provides for a system of shared competence between the EPPO and national authorities in combating crimes affecting the financial interests of the Union, based on the right of evocation of the EPPO.

(14)

In the light of the principle of sincere cooperation, both the EPPO and the competent national authorities should support and inform each other with the aim of efficiently combatting the crimes falling under the competence of the EPPO.

(15)

This Regulation is without prejudice to Member States’ national systems concerning the way in which criminal investigations are organised.

(16)

Since the EPPO is to be granted powers of investigation and prosecution, institutional safeguards should be put in place to ensure its independence as well as its accountability towards the institutions of the Union.

(17)

The EPPO should act in the interest of the Union as a whole and neither seek nor take instructions from any person external to the EPPO.

(18)

Strict accountability is a complement to the independence and the powers granted to the EPPO under this Regulation. The European Chief Prosecutor is fully accountable for the performance of his/her duties as the head of the EPPO and as such he/she bears an overall institutional accountability for its general activities to the European Parliament, the Council and the Commission. As a result, any of these institutions can apply to the Court of Justice of the European Union (the ‘Court of Justice’), with a view to his/her removal under certain circumstances, including in cases of serious misconduct. The same procedure should apply for the dismissal of European Prosecutors.

(19)

The EPPO should issue a public Annual Report on its general activities, which at a minimum should contain statistical data on the work of the EPPO.

(20)

The organisational structure of the EPPO should allow quick and efficient decision-making in the conduct of criminal investigations and prosecutions, whether they involve one or several Member States. The structure should also ensure that all national legal systems and traditions of the Member States are represented in the EPPO, and that prosecutors with knowledge of the individual legal systems will in principle handle investigations and prosecutions in their respective Member States.

(21)

To that end, the EPPO should be an indivisible Union body operating as a single office. The central level consists of a European Chief Prosecutor, who is the head of the EPPO as a whole and the head of the College of European Prosecutors, Permanent Chambers and European Prosecutors. The decentralised level consists of European Delegated Prosecutors located in the Member States.

(22)

In addition, to ensure consistency in its action and thus an equivalent protection of the Union’s financial interests, the organisational structure and the internal decision-making process of the EPPO should enable the Central Office to monitor, direct and supervise all investigations and prosecutions undertaken by European Delegated Prosecutors.

(23)

In this Regulation, the terms ‘general oversight’, ‘monitoring and directing’ and ‘supervision’ are used to describe different control activities exercised by the EPPO. ‘General oversight’ should be understood as referring to the general administration of the activities of the EPPO, in which instructions are only given on issues which have a horizontal importance for the EPPO. ‘Monitoring and directing’ should be understood as referring to the powers to monitor and direct individual investigations and prosecutions. ‘Supervision’ should be understood as referring to a closer and continuous oversight of investigations and prosecutions, including, whenever necessary, intervention and instruction-giving on investigations and prosecution matters.

(24)

The College should take decisions on strategic matters, including determining the priorities and the investigation and prosecution policy of the EPPO, as well as on general issues arising from individual cases, for example regarding the application of this Regulation, the correct implementation of the investigation and prosecution policy of the EPPO or questions of principle or of significant importance for the development of a coherent investigation and prosecution policy of the EPPO. The decisions of the College on general issues should not affect the duty to investigate and prosecute in accordance with this Regulation and national law. The College should use its best efforts to take decisions by consensus. If such a consensus cannot be reached, decisions should be taken by voting.

(25)

The Permanent Chambers should monitor and direct investigations and ensure the coherence of the activities of the EPPO. The composition of Permanent Chambers should be determined in accordance with the internal rules of procedure of the EPPO, which should allow, among other things, for a European Prosecutor to be a member of more than one Permanent Chamber where this is appropriate to ensure, to the extent possible, an even workload between individual European Prosecutors.

(26)

Permanent Chambers should be chaired by the European Chief Prosecutor, one of the deputy European Chief Prosecutors or a European Prosecutor, in accordance with principles laid down in the internal rules of procedure of the EPPO.

(27)

The allocation of cases between the Permanent Chambers should be based on a system of a random distribution so as to ensure, to the extent possible, an equal division of workload. Deviations from this principle should be possible to ensure the proper and efficient functioning of the EPPO on a decision by the European Chief Prosecutor.

(28)

A European Prosecutor from each Member State should be appointed to the College. The European Prosecutors should in principle supervise, on behalf of the competent Permanent Chamber, the investigations and prosecutions handled by the European Delegated Prosecutors in their Member State of origin. They should act as liaison between the central office and the decentralised level in their Member States, facilitating the functioning of the EPPO as a single office. The supervising European Prosecutor should also check any instruction’s compliance with national law and inform the Permanent Chamber if the instructions do not do so.

(29)

For reasons of workload linked to the high number of investigations and prosecutions in a given Member State, a European Prosecutor should be able to request that, exceptionally, the supervision of certain investigations and prosecutions in his/her Member State of origin may be assigned to other European Prosecutors. The decision should be taken by the European Chief Prosecutor with the agreement of the European Prosecutor who would take over the cases concerned. The criteria for such decisions should be laid down in the internal rules of procedure of the EPPO, and should include the requirement that the European Prosecutor taking over the cases has sufficient knowledge of the language and legal system of the Member State concerned.

(30)

The investigations of the EPPO should as a rule be carried out by European Delegated Prosecutors in the Member States. They should do so in accordance with this Regulation and, as regards matters not covered by this Regulation, in accordance with national law. European Delegated Prosecutors should carry out their tasks under the supervision of the supervising European Prosecutor and under the direction and instruction of the competent Permanent Chamber. Where the national law of a Member State provides for the internal review of certain acts within the structure of the national prosecutor’s office, the review of such decisions taken by the European Delegated Prosecutor should fall under the supervision powers of the supervising European Prosecutor in accordance with the internal rules of procedure of the EPPO. In such cases, Member States should not be obliged to provide for review by national courts, without prejudice to Article 19 TEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

(31)

The functions of prosecutor in competent courts apply until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the offence, including, where applicable, sentencing and the resolution of any legal action or remedies available until that decision has become definitive.

(32)

The European Delegated Prosecutors should be an integral part of the EPPO and as such, when investigating and prosecuting offences within the competence of the EPPO, they should act exclusively on behalf and in the name of the EPPO on the territory of their respective Member State. This should entail granting them under this Regulation a functionally and legally independent status which is different from any status under national law.

(33)

Notwithstanding their special status under this Regulation, the European Delegated Prosecutors should, during their term of office, also be members of the prosecution service of their Member State, namely a prosecutor or member of the judiciary, and should be granted by their Member State at least the same powers as national prosecutors.

(34)

The European Delegated Prosecutors should be bound to follow instructions coming from the Permanent Chambers and the European Prosecutors. Where a European Delegated Prosecutor considers that an instruction would require him/her to undertake any measure that would not be in compliance with national law, he/she should ask for a review of that instruction by the European Chief Prosecutor.

(35)

The European Delegated Prosecutor handling a case should report any significant developments in a case, such as the performance of investigative measures or changes to the list of suspected persons, to the supervising European Prosecutor and to the competent Permanent Chamber.

(36)

The Permanent Chambers should exercise their decision-making power at specific steps of the proceedings of the EPPO with a view to ensuring a common investigation and prosecution policy. They should adopt decisions on the basis of a draft decision proposed by the handling European Delegated Prosecutor. However, in exceptional cases, a Permanent Chamber should be able to adopt a decision without a draft decision of the handling European Delegated Prosecutor. In such cases, the European Prosecutor supervising the case may present such a draft decision.

(37)

A Permanent Chamber should be able to delegate its decision-making power to the supervising European Prosecutor in specific cases where an offence is not serious or the proceedings are not complex. When assessing the degree of seriousness of an offence, account should be taken of its repercussions at Union level.

(38)

A substitution mechanism between European Prosecutors should be provided for in the internal rules of procedure of the EPPO. The substitution mechanism should be used in cases where a European Prosecutor is briefly unable to fulfil his/her duties, for example, due to absence.

(39)

In addition, a European Prosecutor should be substituted by one of the European Delegated Prosecutors of his/her Member State when the European Prosecutor resigns, is dismissed or leaves his/her position for any other reason or in cases, for example, of prolonged illness. The substitution should be limited to a period of up to 3 months. The possibility to prolong this time limit should be left to the discretion of the College, where deemed to be necessary, taking into account the workload of the EPPO and the duration of the absence, pending replacement or return of the European Prosecutor. The European Delegated Prosecutor substituting the European Prosecutor should, for the period of the substitution, no longer be in charge of investigations and prosecutions handled by him/her as a European Delegated Prosecutor or as national prosecutor. With regard to proceedings of the EPPO which were handled by the European Delegated Prosecutor substituting a European Prosecutor, the EPPO’s rules on reallocation should apply.

(40)

The procedure for the appointment of the European Chief Prosecutor and the European Prosecutors should guarantee their independence. Their legitimacy should be drawn from the institutions of the Union involved in the appointment procedure. The Deputies to the European Chief Prosecutor should be appointed by the College from among its members.

(41)

A selection panel should establish a short list of candidates for the position of European Chief Prosecutor. The power to establish the panel’s operating rules and to appoint its members should be conferred on the Council, based on a proposal from the Commission. Such an implementing power would mirror the specific powers conferred on the Council under Article 86 TFEU, and reflects the specific nature of the EPPO, which will remain firmly embedded in national legal structures while at the same time being a Union body. The EPPO will be acting in proceedings where most other actors will be national, such as courts, police and other law enforcement authorities, and therefore the Council has a specific interest in being closely involved in the appointment procedure. Conferring those powers on the Council also adequately takes into account the potential sensitive nature of any decision-making powers with direct implications for the national judicial and prosecution structures. The European Parliament and the Council should appoint, by common accord, one of the shortlisted candidates as Chief Prosecutor.

(42)

Each Member State should nominate three candidates for the position of European Prosecutor to be selected and appointed by the Council. With a view to ensuring the continuity of the work of the College, there should be a partial replacement of one third of the European Prosecutors every 3 years. The power to adopt transitional rules for the appointment of European Prosecutors for and during the first mandate period should be conferred on the Council. That implementing power mirrors the power of the Council to select and appoint the European Prosecutors. This is also justified by the specific nature of the European Prosecutors as being linked to their respective Member States while at the same time being Members of the College and more generally, by the specific nature of the EPPO following the same logic underlying the implementing power conferred on the Council to establish the panel’s operating rules and to appoint its members. The Council should take into account the geographical range of the Member States when deciding on the partial replacement of one third of the European Prosecutors during their first mandate period.

(43)

The procedure for the appointment of the European Delegated Prosecutors should ensure that they are an integral part of the EPPO while they remain integrated at an operational level in their national legal systems and judicial and prosecution structures. Member States should nominate candidates for the position of European Delegated Prosecutors, who should be appointed by the College on a proposal by the European Chief Prosecutor.

(44)

There should be two or more European Delegated Prosecutors in each Member State to ensure the proper handling of the caseload of the EPPO. The European Chief Prosecutor should approve the number of European Delegated Prosecutors per Member State, as well as the functional and territorial division of tasks among them, in consultation with each Member State. In such consultations, due account should be taken of the organisation of the national prosecution systems. The notion of functional division of competences between European Delegated Prosecutors could allow for a division of tasks.

(45)

The total number of European Delegated Prosecutors in a Member State may be modified with the approval of the European Chief Prosecutor, subject to the limits of the annual budget line of the EPPO.

(46)

The College should be responsible for disciplinary procedures concerning European Delegated Prosecutors acting under this Regulation. Since European Delegated Prosecutors remain active members of the public prosecution or the judiciary of the Member States, and may also exercise functions as national prosecutors, national disciplinary provisions may apply for reasons not connected with this Regulation. However, in such cases the European Chief Prosecutor should be informed of the dismissal or of any disciplinary action, given his responsibilities for the management of the EPPO and in order to protect its integrity and independence.

(47)

The work of the EPPO should, in principle, be carried out in electronic form. A case management system should be established, owned and managed by the EPPO. The information in the case management system should include information received about possible offences that fall under the EPPO’s competence, as well as information from the case files, also when those have been closed. The EPPO should, when establishing the case management system, ensure that the system allows the EPPO to operate as a single office, where the case files administered by European Delegated Prosecutors are available to the Central Office for the exercise of its decision-making, monitoring and direction, and supervision tasks.

(48)

National authorities should inform the EPPO without delay of any conduct that could constitute an offence within the competence of the EPPO. In cases which fall outside its scope of competence, the EPPO should inform the competent national authorities of any facts of which it becomes aware, and which might constitute a criminal offence, for example false testimony.

(49)

Institutions, bodies, offices and agencies of the Union, as well as national authorities, should provide without delay any information to the EPPO about offences in respect of which it could exercise its competence. The EPPO may also receive or gather information from other sources, such as private parties. A verification mechanism in the EPPO should aim to assess whether, on the basis of the information received, the conditions for material, territorial and personal competence of the EPPO are fulfilled.

(50)

Whistle-blowers may bring new information to the attention of the EPPO thereby assisting it in its work to investigate, prosecute and bring to judgment perpetrators of offences affecting the Union’s financial interests. However, whistleblowing may be deterred by fear of retaliation. With a view to facilitating the detection of offences that fall within the competence of the EPPO, Member States are encouraged to provide, in accordance with their national law, effective procedures to enable reporting of possible offences that fall within the competence of the EPPO and to ensure protection of the persons who report such offences from retaliation, and in particular from adverse or discriminatory employment actions. The EPPO should develop its own internal rules if necessary.

(51)

In order to comply fully with their obligation to inform the EPPO where a suspicion of an offence within its competence is identified, the national authorities of the Member States as well as all institutions, bodies, offices and agencies of the Union should follow the existing reporting procedures and have in place efficient mechanisms for a preliminary evaluation of allegations reported to them. The institutions, bodies, offices and agencies of the Union may make use of the European Anti-Fraud Office (‘OLAF’) to that end.

(52)

Member States’ authorities should set up a system that ensures that information is reported to the EPPO as soon as possible. It is up to the Member States to decide whether to set up a direct or centralised system.

(53)

Compliance with that reporting obligation is essential for the EPPO’s good functioning and should be interpreted broadly to ensure that national authorities report cases where the assessment of some criteria is not immediately possible (for example the level of damage or the applicable penalty). The EPPO should also be able to request information from the Member States’ authorities on a case-by-case basis about other offences affecting the Union’s financial interests. This should not be considered as a possibility for the EPPO to request systematic or periodic information from Member States’ authorities concerning minor offences.

(54)

The efficient investigation of offences affecting the financial interests of the Union and the principle of ne bis in idem may require, in certain cases, an extension of the investigation to other offences under national law, where these are inextricably linked to an offence affecting the financial interests of the Union. The notion of ‘inextricably linked offences’ should be considered in light of the relevant case-law which, for the application of the ne bis in idem principle, retains as a relevant criterion the identity of the material facts (or facts which are substantially the same), understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together in time and space.

(55)

The EPPO should have the right to exercise competence, where offences are inextricably linked and the offence affecting the Union’s financial interests is preponderant, in terms of the seriousness of the offence concerned, as reflected in the maximum sanctions that could be imposed.

(56)

However, the EPPO should also have the right to exercise competence in the case of inextricably linked offences where the offence affecting the financial interests of the Union is not preponderant in terms of sanctions levels, but where the inextricably linked other offence is deemed to be ancillary in nature because it is merely instrumental to the offence affecting the financial interests of the Union, in particular where such other offence has been committed for the main purpose of creating the conditions to commit the offence affecting the financial interests of the Union, such as an offence strictly aimed at ensuring the material or legal means to commit the offence affecting the financial interests of the Union, or to ensure the profit or product thereof.

(57)

The notion of offences relating to participation in a criminal organisation should be subject to the definition provided for in national law in accordance with Council Framework Decision 2008/841/JHA (3), and may cover, for example, membership in, or the organisation and leadership of, such a criminal organisation.

(58)

The competence of the EPPO regarding offences affecting the financial interests of the Union should, as a general rule, take priority over national claims of competence so that it can ensure consistency and provide steering of investigations and prosecutions at Union level. With regard to those offences the authorities of Member States should refrain from acting, unless urgent measures are required, until the EPPO has decided whether to conduct an investigation.

(59)

A particular case should be considered to have repercussions at Union level, inter alia, where a criminal offence has a transnational nature and scale, where such an offence involves a criminal organisation, or where the specific type of offence could pose a serious threat to the Union’s financial interests or the Union institutions’ credit and Union citizens’ confidence.

(60)

Where the EPPO cannot exercise its competence in a particular case because there is reason to assume that the damage caused, or likely to be caused, to the Union’s financial interests does not exceed the damage caused, or likely to be caused, to another victim, the EPPO should nevertheless be able to exercise its competence provided that it would be better placed to investigate or prosecute than the authorities of the respective Member State(s). The EPPO could appear to be better placed, inter alia, where it would be more effective to let the EPPO investigate and prosecute the respective criminal offence due to its transnational nature and scale, where the offence involves a criminal organisation, or where a specific type of offence could be a serious threat to the Union’s financial interests or the Union institutions’ credit and Union citizens’ confidence. In such a case the EPPO should be able to exercise its competence with the consent given by the competent national authorities of the Member State(s) where damage to such other victim(s) occurred.

(61)

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 should inform the EPPO thereof, in order to allow the latter to assess whether it should exercise competence.

(62)

In the case of disagreement over the questions of exercise of competence, the competent national authorities should decide on the attribution of competence. The notion of competent national authorities should be understood as any judicial authorities which have competence to decide on the attribution of competence in accordance with national law.

(63)

As the EPPO should bring prosecutions before national courts, its competence should be defined by reference to the criminal law of the Member States that criminalises acts or omissions affecting the Union’s financial interests and determines the applicable penalties by implementing the relevant Union legislation, in particular Directive (EU) 2017/1371, in national legal systems.

(64)

The EPPO should exercise its competence as broadly as possible so that its investigations and prosecutions may extend to offences committed outside the territory of the Member States.

(65)

The investigations and prosecutions of the EPPO should be guided by the principles of proportionality, impartiality and fairness towards the suspect or accused person. This includes the obligation to seek all types of evidence, inculpatory as well as exculpatory, either motu proprio or at the request of the defence.

(66)

In order to ensure legal certainty and to effectively combat offences affecting the Union’s financial interests, the investigation and prosecution activities of the EPPO should be guided by the legality principle, whereby the EPPO applies strictly the rules laid down in this Regulation relating in particular to competence and its exercise, the initiation of investigations, the termination of investigations, the referral of a case, the dismissal of the case and simplified prosecution procedures.

(67)

In order to best safeguard the rights of the defendant, in principle a suspect or accused person should only face one investigation or prosecution by the EPPO. Where an offence has been committed by several persons, the EPPO should in principle initiate only one case and conduct investigations in respect of all suspect or accused persons jointly.

(68)

Where several European Delegated Prosecutors have opened investigations in respect of the same criminal offence, the Permanent Chamber should where appropriate merge such investigations. The Permanent Chamber may decide not to merge such proceedings or decide to subsequently split such proceedings if this is in the interest of the efficiency of investigations, for example if proceedings against one suspect or accused person could be terminated at an earlier stage, whereas proceedings against other suspect or accused persons would still have to be continued, or if splitting the case could shorten the period of pre-trial detention of one of the suspects. Where different Permanent Chambers are in charge of the cases to be merged, the internal rules of procedure of the EPPO should determine the appropriate competence and procedure. Where the Permanent Chamber decides to split a case, its competence for the resulting cases should be maintained.

(69)

The EPPO should rely on national authorities, including police authorities, in particular for the execution of coercive measures. Under the principle of sincere cooperation, all national authorities and the relevant bodies of the Union, including Eurojust, Europol and OLAF, should actively support the investigations and prosecutions of the EPPO, as well as cooperate with it, from the moment a suspected offence is reported to the EPPO until the moment it determines whether to prosecute or otherwise dispose of the case.

(70)

It is essential for the effective investigation and prosecution of offences affecting the Union’s financial interests that the EPPO be able to gather evidence by using at least a minimum set of investigation measures, while respecting the principle of proportionality. Those measures should be available with regard to the offences that are within the mandate of the EPPO, at least where they are punishable by a maximum penalty of at least 4 years of imprisonment, for the purpose of its investigations and prosecutions, but may be subject to limitations in accordance with national law.

(71)

In addition to the minimum set of investigation measures listed in this Regulation, European Delegated Prosecutors should be entitled to request or to order any measures which are available to prosecutors under national law in similar national cases. Availability should be ensured in all situations where the indicated investigative measure exists but may be subject to limitations in accordance with national law.

(72)

In cross-border cases, the handling European Delegated Prosecutor should be able to rely on assisting European Delegated Prosecutors when measures need to be undertaken in other Member States. Where judicial authorisation is required for such a measure, it should be clearly specified in which Member State the authorisation should be obtained, but in any case there should be only one authorisation. If an investigation measure is finally refused by the judicial authorities, namely after all legal remedies have been exhausted, the handling European Delegated Prosecutor should withdraw the request or the order.

(73)

The possibility foreseen in this Regulation to have recourse to legal instruments on mutual recognition or cross-border cooperation should not replace the specific rules on cross-border investigations under this Regulation. It should rather supplement them to ensure that, where a measure is necessary in a cross-border investigation but is not available in national law for a purely domestic situation, it can be used in accordance with national law implementing the relevant instrument, when conducting the investigation or prosecution.

(74)

The provisions of this Regulation on cross-border cooperation should be without prejudice to existing legal instruments that facilitate cross-border cooperation between national authorities, other than prosecution or judicial authorities. The same should apply to national authorities cooperating on the basis of administrative law.

(75)

The provisions of this Regulation relating to pre-trial arrest and cross-border surrender should be without prejudice to the specific procedures in Member States where judicial authorisation is not required for the initial arrest of a suspect or accused person.

(76)

The handling European Delegated Prosecutor should be entitled to issue or request European Arrest Warrants within the area of competence of the EPPO.

(77)

The EPPO should be entitled to refer a case to national authorities, where the investigation reveals that the offence is outside the competence of the EPPO. In such a referral, national authorities should preserve their full prerogatives under national law to open, continue or dismiss the investigation.

(78)

This Regulation requires the EPPO to exercise the functions of a prosecutor, which includes taking decisions on a suspect or accused person’s indictment and the choice of the Member State whose courts will be competent to hear the prosecution. The decision whether to indict the suspect or accused person should in principle be made by the competent Permanent Chamber on the basis of a draft decision by the European Delegated Prosecutor, so that there is a common prosecution policy. The Permanent Chamber should be entitled to take any decision within 21 days of receiving the draft decision, including requesting further evidence, before deciding to bring a case to judgment, except a decision to dismiss a case where the European Delegated Prosecutor has proposed to bring the case to judgment.

(79)

The Member State whose courts will be competent to hear the prosecution should be chosen by the competent Permanent Chamber on the basis of a set of criteria laid down in this Regulation. The Permanent Chamber should take its decision on the basis of a report and a draft decision by the handling European Delegated Prosecutor, which should be transmitted to the Permanent Chamber by the supervising European Prosecutor with, if necessary, his/her own assessment. The supervising European Prosecutor should retain all the powers to give specific instructions to the European Delegated Prosecutor provided for in this Regulation.

(80)

The evidence presented by the EPPO in court should not be denied admission on the mere ground that the evidence was gathered in another Member State or in accordance with the law of another Member State, provided that the trial court considers its admission to respect the fairness of the procedure and the suspect or accused person’s rights of defence under the Charter. This Regulation respects the fundamental rights and observes the principles recognised by Article 6 TEU and in the Charter, in particular Title VI thereof, by international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by Member States’ constitutions in their respective fields of application. In line with those principles, and in respecting the different legal systems and traditions of the Member States as provided for in Article 67(1) TFEU, nothing in this Regulation may be interpreted as prohibiting the courts from applying the fundamental principles of national law on fairness of the procedure that they apply in their national systems, including in common law systems.

(81)

Taking into account the legality principle, the investigations of the EPPO should as a rule lead to prosecution in the competent national courts in cases where there is sufficient evidence and no legal ground bars prosecution, or where no simplified prosecution procedure has been applied. The grounds for dismissal of a case are exhaustively laid down in this Regulation.

(82)

National legal systems provide for various types of simplified prosecution procedures, which may or may not include involvement of a court, for example in the form of transactions with the suspect or accused person. If such procedures exist, the European Delegated Prosecutor should have the power to apply them under the conditions provided for in national law and in the situations provided for by this Regulation. Those situations should include cases where the final damage of the offence, after possible recovery of an amount corresponding to such damage, is not significant. Considering the interest of a coherent and effective prosecution policy of the EPPO, the competent Permanent Chamber should always be called upon to give its consent to the use of such procedures. When the simplified procedure has been successfully applied, the case should be finally disposed of.

(83)

This Regulation requires the EPPO to respect, in particular, the right to a fair trial, the rights of the defence and the presumption of innocence, as enshrined in Articles 47 and 48 of the Charter. Article 50 of the Charter, which protects the right not to be tried or punished twice in criminal proceedings for the same offence (ne bis in idem), ensures that there will be no double jeopardy as a result of the prosecutions brought by the EPPO. The activities of the EPPO should thus be exercised in full compliance with those rights and this Regulation should be applied and interpreted accordingly.

(84)

Article 82(2) TFEU allows the Union to establish minimum rules on rights of individuals in criminal proceedings, in order to ensure that the rights of defence and the fairness of the proceedings are respected. Those minimum rules have been gradually set out by the Union legislator in Directives on specific rights.

(85)

The rights of defence provided for in the relevant Union law, such as Directives 2010/64/EU (4), 2012/13/EU (5), 2013/48/EU (6), (EU) 2016/343 (7), (EU) 2016/1919 (8), of the European Parliament and of the Council as implemented by national law, should apply to the activities of the EPPO. Any suspect or accused person in respect of whom the EPPO initiates an investigation should benefit from those rights, as well as from the rights provided for in national law to request that experts are appointed or that witnesses are heard, or that evidence on behalf of the defence is otherwise produced by the EPPO.

(86)

Article 86(3) TFEU allows the Union legislator to determine the rules applicable to the judicial review of procedural measures taken by the EPPO in the performance of its functions. That competence granted to the Union legislator reflects the specific nature of the tasks and structure of the EPPO, which is different from that of all other bodies and agencies of the Union and requires special rules regarding judicial review.

(87)

According to Article 86(2) TFEU, the EPPO exercises its functions of prosecutor before the competent courts of the Member States. Acts undertaken by the EPPO in the course of its investigations are closely related to the prosecution which may result therefrom, and thus have effects in the legal order of the Member States. In many cases the acts will be carried out by national law enforcement authorities acting under the instructions of the EPPO, in some cases after having obtained the authorisation of a national court.

It is therefore appropriate to consider that procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties should be subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law. This should ensure that the procedural acts of the EPPO that are adopted before the indictment and intended to produce legal effects vis-à-vis third parties (a category which includes the suspect, the victim, and other interested persons whose rights may be adversely affected by such acts) are subject to judicial review by national courts. Procedural acts that relate to the choice of the Member State whose courts will be competent to hear the prosecution, which is to be determined on the basis of the criteria laid down in this Regulation, are intended to produce legal effects vis-à-vis third parties and should therefore be subject to judicial review by national courts, at the latest at the trial stage.

Actions before competent national courts for failures of the EPPO to act are those regarding procedural acts which the EPPO is under a legal obligation to adopt and which are intended to produce legal effects vis-à-vis third parties. Where national law provides for judicial review concerning procedural acts which are not intended to produce legal effects vis-à-vis third parties or for legal actions concerning other failures to act, this Regulation should not be interpreted as affecting such legal provisions. In addition, Member States should not be required to provide for judicial review by the competent national courts of procedural acts which are not intended to produce legal effects vis-à-vis third parties, such as the appointment of experts or the reimbursement of witness costs.

Finally, this Regulation does not affect the powers of national trial courts.

(88)

The legality of procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties should be subject to judicial review before national courts. In that regard, effective remedies should be ensured in accordance with the second subparagraph of Article 19(1) TEU. Furthermore, as underlined by the case-law of the Court of Justice, the national procedural rules governing actions for the protection of individual rights granted by Union law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Union law (principle of effectiveness).

When national courts review the legality of such acts, they may do so on the basis of Union law, including this Regulation, and also on the basis of national law, which applies to the extent that a matter is not dealt with by this Regulation. As underlined in the case-law of the Court of Justice, national courts should always refer preliminary questions to the Court of Justice when they entertain doubts about the validity of those acts vis-à-vis Union law.

However, national courts may not refer to the Court of Justice preliminary questions on the validity of the procedural acts of the EPPO with regard to national procedural law or to national measures transposing Directives, even if this Regulation refers to them. This is however without prejudice to preliminary references concerning the interpretation of any provision of primary law, including the Treaties and the Charter, or the interpretation and validity of any provision of Union secondary law, including this Regulation and applicable Directives. In addition, this Regulation does not exclude the possibility for national courts to review the validity of the procedural acts of the EPPO which are intended to produce legal effects vis-à-vis third parties with regard to the principle of proportionality as enshrined in national law.

(89)

The provision of this Regulation on judicial review does not alter the powers of the Court of Justice to review the EPPO administrative decisions, which are intended to have legal effects vis-à-vis third parties, namely decisions that are not taken in the performance of its functions of investigating, prosecuting or bringing to judgement. This Regulation is also without prejudice to the possibility for a Member State of the European Union, the European Parliament, the Council or the Commission to bring actions for annulment in accordance with the second paragraph of Article 263 TFEU and to the first paragraph of Article 265 TFEU, and to infringement proceedings under Articles 258 and 259 TFEU.

(90)

Regulation (EC) No 45/2001 of the European Parliament and of the Council (9) applies to the processing of administrative personal data performed by the EPPO.

(91)

Consistent and homogeneous application of the rules for the protection of individuals’ fundamental rights and freedoms with regard to the processing of personal data should be ensured throughout the Union.

(92)

Declaration No 21 on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation, annexed to the TEU and to the TFEU, provides that specific rules on the protection of personal data and the free movement of such data in the fields of judicial cooperation in criminal matters and police cooperation based on Article 16 TFEU may prove to be necessary because of the specific nature of these fields.

(93)

The rules of this Regulation on the protection of personal data should be interpreted and applied in accordance with the interpretation and application of Directive (EU) 2016/680 of the European Parliament and of the Council (10), which will apply to the processing of personal data by competent authorities of the Member States of the European Union for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties.

(94)

The data protection principle of fair processing is a distinct notion from the right to a fair trial as defined in Article 47 of the Charter and in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

(95)

The data protection provisions of this Regulation are without prejudice to the applicable rules on the admissibility of personal data as evidence in criminal court proceedings.

(96)

All Member States of the European Union are affiliated to the International Criminal Police Organisation (Interpol). To fulfil its mission, Interpol receives, stores and circulates personal data to assist competent authorities in preventing and combating international crime. It is therefore appropriate to strengthen cooperation between the Union and Interpol by promoting an efficient exchange of personal data whilst ensuring respect for fundamental rights and freedoms regarding the automatic processing of personal data. Where operational personal data are transferred from the EPPO to Interpol, and to countries which have delegated members to Interpol, this Regulation, in particular the provisions on international transfers, should apply. This Regulation should be without prejudice to the specific rules laid down in Council Common Position 2005/69/JHA (11) and Council Decision 2007/533/JHA (12).

(97)

When the EPPO transfers operational personal data to an authority of a third country or to an international organisation or Interpol by virtue of an international agreement concluded pursuant to Article 218 TFEU, appropriate safeguards for the protection of privacy and the fundamental rights and freedoms of individuals should ensure that the data protection provisions of this Regulation are complied with.

(98)

In order to ensure effective, reliable and consistent monitoring of compliance with and enforcement of this Regulation as regards operational personal data, as required by Article 8 of the Charter, the European Data Protection Supervisor should have the tasks laid down in this Regulation and should have effective powers, including investigative, corrective, and advisory powers which constitute the necessary means to perform those tasks. However, the powers of the European Data Protection Supervisor should not unduly interfere with specific rules for criminal proceedings, including investigation and prosecution of criminal offences, or the independence of the judiciary.

(99)

In order to enable the EPPO to fulfil its tasks and to take account of developments in information technology, and in light of the state of progress in the information society, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of listing and updating the list of the categories of operational personal data and the categories of data subjects listed in an Annex. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making of 13 April 2016 (13). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council should receive all documents at the same time as Member States’ experts, and their experts should systematically have access to meetings of the Commission expert group dealing with the preparation of delegated acts.

(100)

The EPPO should work closely with other institutions, bodies, offices and agencies of the Union in order to facilitate the exercise of its functions under this Regulation and establish, where necessary, formal arrangements on detailed rules relating to exchange of information and cooperation. Cooperation with Europol and OLAF should be of particular importance to avoid duplication and enable the EPPO to obtain the relevant information in their possession, as well as to draw on their analysis in specific investigations.

(101)

The EPPO should be able to obtain any relevant information that falls within its competence stored in databases and registers of the institutions, bodies, offices and agencies of the Union.

(102)

The EPPO and Eurojust should become partners and should cooperate in operational matters in accordance with their respective mandates. Such cooperation may involve any investigations conducted by the EPPO where an exchange of information or coordination of investigative measures in respect of cases within the competence of Eurojust is considered to be necessary or appropriate. Whenever the EPPO is requesting such cooperation of Eurojust, the EPPO should liaise with the Eurojust national member of the handling European Delegated Prosecutor’s Member State. The operational cooperation may also involve third countries that have a cooperation agreement with Eurojust.

(103)

The EPPO and OLAF should establish and maintain a close cooperation aimed at ensuring the complementarity of their respective mandates, and avoiding duplication. In that regard, OLAF should in principle not open any administrative investigations parallel to an investigation conducted by the EPPO into the same facts. This should, however, be without prejudice to the power of OLAF to start an administrative investigation on its own initiative, in close consultation with the EPPO.

(104)

In all actions in support of the EPPO, OLAF will act independently of the Commission, in accordance with Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (14).

(105)

In cases where the EPPO is not conducting an investigation, it should be able to provide relevant information to allow OLAF to consider appropriate action in accordance with its mandate. In particular, the EPPO could consider informing OLAF of cases where there are no reasonable grounds to believe that an offence within the competence of the EPPO is being or has been committed, but an administrative investigation by OLAF may be appropriate, or where the EPPO dismisses a case and a referral to OLAF is desirable for administrative follow-up or recovery. When the EPPO provides information, it may request that OLAF considers whether to open an administrative investigation or take other administrative follow-up or monitoring action, in particular for the purposes of precautionary measures, recovery or disciplinary action, in accordance with Regulation (EU, Euratom) No 883/2013.

(106)

To the extent that recovery procedures are deferred as a result of decisions taken by the EPPO in connection with investigations or prosecutions under this Regulation, Member States should not be considered at fault or negligent for the purposes of recovery procedures within the meaning of Article 122 of Regulation (EU) No 1303/2013 of the European Parliament and of the Council (15).

(107)

The EPPO should enable the institutions, bodies, offices or agencies of the Union and other victims to take appropriate measures. This may include taking precautionary measures, in particular to prevent any continuous wrongdoing or to protect the Union from reputational damage, or to allow them to intervene as a civil party in the proceedings in accordance with national law. The exchange of information should take place in a manner that fully respects the independence of the EPPO, and only to the extent possible, without any prejudice to the proper conduct and confidentiality of investigations.

(108)

In so far as necessary for the performance of its tasks, the EPPO should also be able to establish and maintain cooperative relations with the authorities of third countries and international organisations. For the purpose of this Regulation, ‘international organisations’ means international organisations and their subordinate bodies governed by public international law or other bodies which are set up by, or on the basis of, an agreement between two or more countries as well as Interpol.

(109)

Where the College identifies an operational need for cooperation with a third country or an international organisation, it should be able to suggest that the Council draw the attention of the Commission to the need for an adequacy decision or for a recommendation on the opening of negotiations on an international agreement.

Pending the conclusion of new international agreements by the Union or the accession by the Union to multilateral agreements already concluded by the Member States, on legal assistance in criminal matters, the Member States should facilitate the exercise by the EPPO of its functions pursuant to the principle of sincere cooperation enshrined in Article 4(3) TEU. If permitted under a relevant multilateral agreement and subject to the third country’s acceptance, the Member States should recognise and, where applicable, notify the EPPO as a competent authority for the purpose of the implementation of those multilateral agreements. This may entail, in certain cases, an amendment to those agreements but the renegotiation of such agreements should not be regarded as a mandatory step, since it may not always be possible. The Member States may also notify the EPPO as a competent authority for the purpose of the implementation of other international agreements on legal assistance in criminal matters concluded by them, including by way of an amendment to those agreements.

Where the notification of the EPPO as a competent authority for the purposes of multilateral agreements already concluded by the Member States with third countries is not possible or is not accepted by the third countries and pending the Union accession to such international agreements, European Delegated Prosecutors may use their status as national prosecutor toward such third countries, provided that they inform and where appropriate endeavour to obtain consent from the authorities of third countries that the evidence collected from these third countries on the basis of those international agreements, will be used in investigations and prosecutions carried out by the EPPO.

The EPPO should also be able to rely on reciprocity or international comity vis à-vis the authorities of third countries. This should however be carried out on a case-by-case basis, within the limits of the material competence of the EPPO and subject to possible conditions set by the authorities of the third countries.

(110)

Member States of the European Union which do not participate in enhanced cooperation on the establishment of the EPPO are not bound by this Regulation. The Commission should, if appropriate, submit proposals in order to ensure effective judicial cooperation in criminal matters between the EPPO and Member States of the European Union which do not participate in enhanced cooperation on the establishment of the EPPO. This should in particular concern the rules relating to judicial cooperation in criminal matters and surrender, fully respecting the Union acquis in this field as well as the duty of sincere cooperation in accordance with Article 4(3) TEU.

(111)

To guarantee the full autonomy and independence of the EPPO, it should be granted an autonomous budget, with revenue coming essentially from a contribution from the budget of the Union. The financial, budgetary and staff regime of the EPPO should follow the relevant Union standards applicable to bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (16), with due regard, however, to the fact that the competence of the EPPO to carry out criminal investigations and prosecutions at Union level is unique.

(112)

The costs of investigation measures undertaken by the EPPO should in principle be covered by the national authorities carrying them out. Exceptionally high costs for investigation measures such as complex experts’ opinions, extensive police operations or surveillance activities over a long period of time could partly be reimbursed by the EPPO, including, where possible, by reallocating resources from other budget lines of the EPPO, or by amending the budget in accordance with this Regulation and the applicable financial rules.

When preparing the proposal for the provisional draft estimate of the revenue and expenditure the Administrative Director should take into account the need of the EPPO to partly reimburse exceptionally costly investigation measures accepted by the Permanent Chamber.

(113)

Operational expenditures of the EPPO should be covered from the budget of the EPPO. These should include the cost of operational communication between the European Delegated Prosecutor and the central level of the EPPO, such as mail delivery costs, travel expenses, translations necessary for the internal functioning of the EPPO, and other costs not previously incurred by Member States during an investigation which are caused only due to the EPPO having assumed responsibilities for investigation and prosecution. However, the costs of the European Delegated Prosecutors’ office and secretarial support should be covered by the Member States.

In accordance with Article 332 TFEU, expenditure resulting from the implementation of the EPPO will be borne by the Member States. That expenditure does not include the administrative costs entailed for the institutions within the meaning of Article 13(1) TEU.

(114)

The College should in principle always delegate its powers conferred on the appointing authority by the Staff Regulations of Officials and the Conditions of Employment of Other Servants (17) (‘the Staff Regulations and the Conditions of Employment’) to conclude contracts of employment, to the Administrative Director, unless specific circumstances call for it to exercise that power.

(115)

The Administrative Director, as authorising officer, is responsible for the implementation of the budget of the EPPO. When consulting with the Permanent Chamber regarding exceptionally costly investigation measures, the Administrative Director is responsible for deciding on the amount of the grant to be awarded, based on the available financial resources and in accordance with the criteria set out in the internal rules of procedure of the EPPO.

(116)

The remuneration of the European Delegated Prosecutors as special advisers, which will be set through a direct agreement, should be based on a specific decision to be taken by the College. This decision should, inter alia, ensure that the European Delegated Prosecutors, in the specific case that they also exercise functions as national prosecutors in accordance with Article 13(3), will in principle continue to be paid in their capacity as national prosecutors and that the remuneration as special adviser will only relate to the equivalent of the work on behalf of the EPPO in the capacity as a European Delegated Prosecutor. Each Member State retains the power to determine in its legislation, in compliance with Union law, the conditions for granting benefits under their social security scheme.

(117)

In order for the EPPO to be fully operational on the date to be determined, it will need staff with experience within the institutions, bodies, offices or agencies of the Union. With a view to meeting that need, the recruitment by the EPPO of temporary and contract agents already working in the institutions, bodies, offices or agencies of the Union should be facilitated by guaranteeing those staff members continuity of their contractual rights if they are recruited by the EPPO in its set-up phase until 1 year after the EPPO becomes operational in accordance with the decision in Article 120(2).

(118)

The EPPO’s proceedings should be transparent in accordance with Article 15(3) TFEU and specific provisions on how the right of public access to documents is ensured, would need to be adopted by the College. Nothing in this Regulation is intended to restrict the right of public access to documents in so far as it is guaranteed in the Union and in the Member States, in particular under Article 42 of the Charter and other relevant provisions.

(119)

The general rules on transparency that apply to Union agencies should also apply to the EPPO but only with regard to documents other than case files, including electronic images of such files, so as not to jeopardise in any manner the requirement of confidentiality in its operational work. In the same manner, administrative inquiries conducted by the European Ombudsman should respect the requirement of confidentiality of the EPPO. In view of ensuring the integrity of the investigations and prosecutions of the EPPO, documents relating to the operational activity should not be covered by the rules of transparency.

(120)

The European Data Protection Supervisory has been consulted and, on 10 March 2014, delivered an opinion.

(121)

The Representatives of the Member States, meeting at Head of State or Government level in Brussels on 13 December 2003, have determined the seat of the EPPO in accordance with the provisions of the Decision of 8 April 1965 (18),

HAS ADOPTED THIS REGULATION:

CHAPTER I

SUBJECT MATTER AND DEFINITIONS

Subject matter

This Regulation establishes the European Public Prosecutor’s Office (‘the EPPO’) and sets out rules concerning its functioning.

Definitions

For the purposes of this Regulation, the following definitions apply:

(1)

‘Member State’ means, except where otherwise indicated, in particular in Chapter VIII, a Member State which participates in enhanced cooperation on the establishment of the EPPO, as deemed to be authorised in accordance with the third subparagraph of Article 86(1) TFEU, or by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) TFEU;

(2)

‘person’ means any natural or legal person;

(3)

‘financial interests of the Union’ means all revenues, expenditures and assets covered by, acquired through, or due to the Union budget and the budgets of the institutions, bodies, offices and agencies established under the Treaties and budgets managed and monitored by them;

(4)

‘staff of the EPPO’ means the personnel at the central level who supports the College, the Permanent Chambers, the European Chief Prosecutor, the European Prosecutors, the European Delegated Prosecutors and the Administrative Director in the day-to-day activities in the performance of the tasks of this Office under this Regulation;

(5)

‘handling European Delegated Prosecutor’ means a European Delegated Prosecutor responsible for the investigations and prosecutions, which he/she has initiated, which have been allocated to him/her or which he/she has taken over using the right of evocation according to Article 27;

(6)

‘assisting European Delegated Prosecutor’ means a European Delegated Prosecutor located in a Member State, other than the Member State of the handling European Delegated Prosecutor, where an investigation or other measure assigned to him/her is to be carried out;

(7)

‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

(8)

‘processing’ means any operation or set of operations which are performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

(9)

‘restriction of processing’ means the marking of stored personal data with the aim of limiting their processing in the future;

(10)

‘profiling’ means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements;

(11)

‘pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person;

(12)

‘filing system’ means any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographical basis;

(13)

‘controller’ means the EPPO or another competent authority which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union law or the law of a Member State of the European Union, the controller or the specific criteria for its nomination may be provided for by Union law or the law of a Member State of the European Union;

(14)

‘processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller;

(15)

‘recipient’ means a natural or legal person, public authority, agency or any other body to which the personal data are disclosed, whether a third party or not. However, Member States of the European Unions’ public authorities other than competent authorities defined in point 7(a) of Article 3 of Directive (EU) 2016/680, which receive personal data in the framework of a particular inquiry of the EPPO shall not be regarded as recipients; the processing of those data by those public authorities shall be in compliance with the applicable data protection rules according to the purposes of the processing;

(16)

‘personal data breach’ means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;

(17)

‘administrative personal data’ means all personal data processed by the EPPO apart from operational personal data;

(18)

‘operational personal data’ means all personal data processed by the EPPO for the purposes laid down in Article 49;

(19)

‘genetic data’ means personal data relating to the inherited or acquired genetic characteristics of a natural person which give unique information about the physiology or the health of that natural person and which result, in particular, from an analysis of a biological sample from the natural person in question;

(20)

‘biometric data’ means personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data;

(21)

‘data concerning health’ means personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his/her health status;

(22)

‘supervisory authority’ means an independent public authority which is established by a Member State of the European Union pursuant to Article 51 of Regulation (EU) 2016/679 of the European Parliament and of the Council (19) or pursuant to Article 41 of Directive (EU) 2016/680;

(23)

‘international organisation’ means an organisation and its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries.

CHAPTER II

ESTABLISHMENT, TASKS AND BASIC PRINCIPLES OF THE EPPO

Article 3

Establishment

1. The EPPO is hereby established as a body of the Union.

2. The EPPO shall have legal personality.

3. The EPPO shall cooperate with Eurojust and rely on its support in accordance with Article 100.

Tasks

The EPPO shall be responsible for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices to, criminal offences affecting the financial interests of the Union which are provided for in Directive (EU) 2017/1371 and determined by this Regulation. In that respect the EPPO shall undertake investigations, and carry out acts of prosecution and exercise the functions of prosecutor in the competent courts of the Member States, until the case has been finally disposed of.

Basic principles of the activities

1. The EPPO shall ensure that its activities respect the rights enshrined in the Charter.

2. The EPPO shall be bound by the principles of rule of law and proportionality in all its activities.

3. The investigations and prosecutions on behalf of the EPPO shall be governed by this Regulation. National law shall apply to the extent that a matter is not regulated by this Regulation. Unless otherwise specified in this Regulation, the applicable national law shall be the law of the Member State whose European Delegated Prosecutor is handling the case in accordance with Article 13(1). Where a matter is governed by both national law and this Regulation, the latter shall prevail.

4. The EPPO shall conduct its investigations in an impartial manner and shall seek all relevant evidence whether inculpatory or exculpatory.

5. The EPPO shall open and conduct investigations without undue delay.

6. The competent national authorities shall actively assist and support the investigations and prosecutions of the EPPO. Any action, policy or procedure under this Regulation shall be guided by the principle of sincere cooperation.

Independence and accountability

1. The EPPO shall be independent. The European Chief Prosecutor, the Deputy European Chief Prosecutors, the European Prosecutors, the European Delegated Prosecutors, the Administrative Director, as well as the staff of the EPPO shall act in the interest of the Union as a whole, as defined by law, and neither seek nor take instructions from any person external to the EPPO, any Member State of the European Union or any institution, body, office or agency of the Union in the performance of their duties under this Regulation. The Member States of the European Union and the institutions, bodies, offices and agencies of the Union shall respect the independence of the EPPO and shall not seek to influence it in the exercise of its tasks.

2. The EPPO shall be accountable to the European Parliament, to the Council and to the Commission for its general activities, and shall issue annual reports in accordance with Article 7.

Article 7

Reporting

1. Every year the EPPO shall draw up and publicly issue an Annual Report on its general activities in the official languages of the institutions of the Union. It shall transmit the report to the European Parliament and to national parliaments, as well as to the Council and to the Commission.

2. The European Chief Prosecutor shall appear once a year before the European Parliament and before the Council, and before national parliaments of the Member States at their request, to give account of the general activities of the EPPO, without prejudice to the EPPO’s obligation of discretion and confidentiality as regards individual cases and personal data. The European Chief Prosecutor may be replaced by one of the Deputy European Chief Prosecutors for hearings organised by national parliaments.

CHAPTER III

STATUS, STRUCTURE AND ORGANISATION OF THE EPPO

SECTION 1

Status and structure of the EPPO

Structure of the EPPO

1. The EPPO shall be an indivisible Union body operating as one single Office with a decentralised structure.

2. The EPPO shall be organised at a central level and at a decentralised level.

3. The central level shall consist of a Central Office at the seat of the EPPO. The Central Office shall consist of the College, the Permanent Chambers, the European Chief Prosecutor, the Deputy European Chief Prosecutors, the European Prosecutors and the Administrative Director.

4. The decentralised level shall consist of European Delegated Prosecutors who shall be located in the Member States.

5. The Central Office and the European Delegated Prosecutors shall be assisted by the staff of the EPPO in their duties under this Regulation.

Article 9

The College

1. The College of the EPPO shall consist of the European Chief Prosecutor and one European Prosecutor per Member State. The European Chief Prosecutor shall chair the meetings of the College and shall be responsible for their preparation.

2. The College shall meet regularly and shall be responsible for the general oversight of the activities of the EPPO. It shall take decisions on strategic matters, and on general issues arising from individual cases, in particular with a view to ensuring coherence, efficiency and consistency in the prosecution policy of the EPPO throughout the Member States, as well on other matters as specified in this Regulation. The College shall not take operational decisions in individual cases. The internal rules of procedure of the EPPO shall provide for modalities on the exercise by the College of the general oversight activities and for taking decisions on strategic matters and general issues in accordance with this Article.

3. On a proposal by the European Chief Prosecutor and following the internal rules of procedure of the EPPO, the College shall set up Permanent Chambers.

4. The College shall adopt internal rules of procedure of the EPPO in accordance with Article 21, and shall further stipulate the responsibilities for the performance of functions of the members of the College and the staff of the EPPO.

5. Unless otherwise stated in this Regulation, the College shall take decisions by simple majority. Any member of the College shall have the right to initiate voting on matters to be decided by the College. Each member of the College shall have one vote. The European Chief Prosecutor shall have a casting vote in the event of a tie vote on any matter to be decided by the College.

The Permanent Chambers

1. The Permanent Chambers shall be chaired by the European Chief Prosecutor or one of the Deputy European Chief Prosecutors, or a European Prosecutor appointed as Chair in accordance with the internal rules of procedure of the EPPO. In addition to the Chair, the Permanent Chambers shall have two permanent Members. The number of Permanent Chambers, and their composition, as well as the division of competences between the Chambers, shall take due account of the functional needs of the EPPO and be determined in accordance with the internal rules of procedure of the EPPO.

The internal rules of procedure of the EPPO shall ensure an equal distribution of workload on the basis of a system of random allocation of cases and shall, in exceptional cases, establish procedures, where necessary for the proper functioning of the EPPO, to allow the European Chief Prosecutor to decide to deviate from the principle of random allocation.

2. The Permanent Chambers shall monitor and direct the investigations and prosecutions conducted by the European Delegated Prosecutors in accordance with paragraphs 3, 4 and 5 of this Article. They shall also ensure the coordination of investigations and prosecutions in cross-border cases, and shall ensure the implementation of decisions taken by the College in accordance with Article 9(2).

3. In accordance with the conditions and procedures set out by this Regulation, where applicable after reviewing a draft decision proposed by the handling European Delegated Prosecutor, the Permanent Chambers shall decide on the following issues:

(a)

to bring a case to judgment in accordance with Article 36(1), (3) and (4);

(b)

to dismiss a case in accordance with point (a) to (g) of Article 39(1);

(c)

to apply a simplified prosecution procedure and to instruct the European Delegated Prosecutor to act with a view to finally dispose of the case in accordance with Article 40;

(d)

to refer a case to the national authorities in accordance with Article 34(1), (2), (3) or (6);

(e)

to reopen an investigation in accordance with Article 39(2).

4. Where necessary, the Permanent Chambers shall take the following decisions, in accordance with the conditions and procedures set out in this Regulation:

(a)

to instruct the European Delegated Prosecutor to initiate an investigation in accordance with the rules in Article 26(1) to (4) where no investigation has been initiated;

(b)

to instruct the European Delegated Prosecutor to exercise the right of evocation in accordance with Article 27(6) where the case has not been evoked;

(c)

to refer to the College strategic matters or general issues arising from individual cases in accordance with Article 9(2);

(d)

to allocate a case in accordance with Article 26(3);

(e)

to reallocate a case in accordance with Article 26(5) or 28(3);

(f)

to approve the decision of a European Prosecutor to conduct the investigation himself or herself in accordance with Article 28(4).

5. The competent Permanent Chamber, acting through the European Prosecutor who is supervising the investigation or the prosecution, may in a specific case give instructions in compliance with applicable national law to the handling European Delegated Prosecutor, where it is necessary for the efficient handling of the investigation or prosecution, in the interest of justice, or to ensure the coherent functioning of the EPPO.

6. The Permanent Chamber shall take decisions by simple majority. The Chamber shall vote at the request of any of its members. Each member shall have one vote. The Chair shall have a casting vote in the event of a tie vote. Decisions shall be taken after deliberation in meetings of the Chamber on the basis, where applicable, of the draft decision proposed by the handling European Delegated Prosecutor.

All case material shall be accessible upon request to the competent Permanent Chamber for the purpose of preparing decisions.

7. The Permanent Chambers may decide to delegate their decision-making power under point (a) or (b) of paragraph 3 of this Article, and in the latter case only in respect of the rules set out in points (a) to (f) of Article 39(1) to the European Prosecutor supervising the case in accordance with Article 12(1) where such delegations can be duly justified with reference to the degree of seriousness of the offence or the complexity of the proceedings in the individual case, with regard to an offence that has caused or is likely to cause damage to the financial interests of the Union of less than EUR 100 000. The internal rules of procedure of the EPPO shall set guidelines with a view to ensuring a consistent application within the EPPO.

The Permanent Chamber shall inform the European Chief Prosecutor of any decision to delegate their decision-making power. On reception of that information, the European Chief Prosecutor may within 3 days request the Permanent Chamber to review its decision if the European Chief Prosecutor considers that the interest to ensure the coherence of the investigations and prosecutions of the EPPO so requires. If the European Chief Prosecutor is a Member of the relevant Permanent Chamber, one of the Deputy European Chief Prosecutors shall exercise the right to request the said review. The supervising European Prosecutor shall report to the Permanent Chamber about the final disposal of the case as well as any information or circumstance he/she deems to be likely to necessitate a new assessment of the opportunity to maintain the delegation, in particular in circumstances referred to in Article 36(3).

The decision to delegate decision-making power may be withdrawn at any time on the request of one of the Members of the Permanent Chamber and shall be decided in accordance with paragraph 6 of this Article. A delegation shall be withdrawn when a European Delegated Prosecutor has substituted the European Prosecutor in accordance with Article 16(7).

To ensure coherent application of the principle of delegation, each Permanent Chamber shall report annually to the College on the use of delegation.

8. The internal rules of procedure of the EPPO shall authorise the Permanent Chambers to take decisions by means of a written procedure to be laid down in detail in the internal rules of procedure of the EPPO.

All decisions taken and instructions given in accordance with paragraphs 3, 4, 5 and 7 shall be recorded in writing and become part of the case file.

9. In addition to the permanent Members, the European Prosecutor who is supervising an investigation or a prosecution in accordance with Article 12(1) shall participate in the deliberations of the Permanent Chamber. The European Prosecutor shall have a right to vote, except as regards the Permanent Chamber’s decisions on delegation or withdrawal of delegation in accordance with paragraph 7 of this Article, on allocation and reallocation under Article 26(3), (4) and (5) and Article 27(6) and on bringing a case to judgment in accordance with Article 36(3), where more than one Member State has jurisdiction for the case, as well as situations described in Article 31(8).

A Permanent Chamber may also, either at the request of a European Prosecutor or a European Delegated Prosecutor or on its own initiative, invite other European Prosecutors or European Delegated Prosecutors who are concerned by a case to attend its meetings without a right to vote.

10. The Chairs of the Permanent Chambers shall, in accordance with the internal rules of procedure of the EPPO, keep the College informed of the decisions taken pursuant to this Article, in order to enable the College to fulfil its role under Article 9(2).

Article 11

The European Chief Prosecutor and the Deputy European Chief Prosecutors

1. The European Chief Prosecutor shall be the Head of the EPPO. The European Chief Prosecutor shall organise the work of the EPPO, direct its activities, and take decisions in accordance with this Regulation and the internal rules of procedure of the EPPO.

2. Two Deputy European Chief Prosecutors shall be appointed to assist the European Chief Prosecutor in the discharge of his/her duties and to act as replacement when he/she is absent or is prevented from attending to those duties.

3. The European Chief Prosecutor shall represent the EPPO vis-à-vis the institutions of the Union and of the Member States of the European Union, and third parties. The European Chief Prosecutor may delegate his/her tasks relating to representation to one of the Deputy European Chief Prosecutors or to a European Prosecutor.

Article 12

The European Prosecutors

1. On behalf of the Permanent Chamber and in compliance with any instructions it has given in accordance with Article 10(3), (4) and (5), the European Prosecutors shall supervise the investigations and prosecutions for which the European Delegated Prosecutors handling the case in their Member State of origin are responsible. The European Prosecutors shall present summaries of the cases under their supervision and, where applicable, proposals for decisions to be taken by the said Chamber, on the basis of draft decisions prepared by the European Delegated Prosecutors.

The internal rules of procedure of the EPPO shall, without prejudice to Article 16(7), provide for a mechanism of substitution between European Prosecutors where the supervising European Prosecutor is temporarily absent from his/her duties or is for other reasons not available to carry out the functions of the European Prosecutors. The substitute European Prosecutor may fulfil any function of a European Prosecutor, except the possibility to conduct an investigation provided for in Article 28(4).

2. A European Prosecutor may request, on an exceptional basis, on grounds related to the workload resulting from the number of investigations and prosecutions in the European Prosecutor’s Member State of origin, or a personal conflict of interest, that the supervision of investigations and prosecutions of individual cases handled by European Delegated Prosecutors in his/her Member State of origin be assigned to other European Prosecutors, subject to the agreement of the latter. The European Chief Prosecutor shall decide on the request based on the workload of a European Prosecutor. In the case of a conflict of interests concerning a European Prosecutor, the European Chief Prosecutor shall grant that request. The internal rules of procedure of the EPPO shall lay down the principles governing that decision and the procedure for the subsequent allocation of the cases concerned. Article 28(4) shall not apply to investigations and prosecutions supervised in accordance with this paragraph.

3. The supervising European Prosecutors may, in a specific case and in compliance with applicable national law and with the instructions given by the competent Permanent Chamber, give instructions to the handling European Delegated Prosecutor, whenever necessary for the efficient handling of the investigation or prosecution or in the interest of justice, or to ensure the coherent functioning of the EPPO.

4. Where the national law of a Member State provides for the internal review of certain acts within the structure of a national prosecutor’s office, the review of such acts taken by the European Delegated Prosecutor shall fall under the supervisory powers of the supervising European Prosecutor in accordance with the internal rules of procedure of the EPPO without prejudice to the supervisory and monitoring powers of the Permanent Chamber.

5. The European Prosecutors shall function as liaisons and information channels between the Permanent Chambers and the European Delegated Prosecutors in their respective Member States of origin. They shall monitor the implementation of the tasks of the EPPO in their respective Member States, in close consultation with the European Delegated Prosecutors. They shall ensure, in accordance with this Regulation and the internal rules of procedure of the EPPO that all relevant information from the Central Office is provided to European Delegated Prosecutors and vice versa.

Article 13

The European Delegated Prosecutors

1. The European Delegated Prosecutors shall act on behalf of the EPPO in their respective Member States and shall have the same powers as national prosecutors in respect of investigations, prosecutions and bringing cases to judgment, in addition and subject to the specific powers and status conferred on them, and under the conditions set out in this Regulation.

The European Delegated Prosecutors shall be responsible for those investigations and prosecutions that they have initiated, that have been allocated to them or that they have taken over using their right of evocation. The European Delegated Prosecutors shall follow the direction and instructions of the Permanent Chamber in charge of a case as well as the instructions from the supervising European Prosecutor.

The European Delegated Prosecutors shall also be responsible for bringing a case to judgment, in particular have the power to present trial pleas, participate in taking evidence and exercise the available remedies in accordance with national law.

2. There shall be two or more European Delegated Prosecutors in each Member State. The European Chief Prosecutor shall, after consulting and reaching an agreement with the relevant authorities of the Member States, approve the number of European Delegated Prosecutors, as well as the functional and territorial division of competences between the European Delegated Prosecutors within each Member State.

3. The European Delegated Prosecutors may also exercise functions as national prosecutors, to the extent that this does not prevent them from fulfilling their obligations under this Regulation. They shall inform the supervising European Prosecutor of such functions. In the event that a European Delegated Prosecutor at any given moment is unable to fulfil his/her functions as a European Delegated Prosecutor because of the exercise of such functions as national prosecutor, he/she shall notify the supervising European Prosecutor, who shall consult the competent national prosecution authorities in order to determine whether priority should be given to their functions under this Regulation. The European Prosecutor may propose to the Permanent Chamber to reallocate the case to another European Delegated Prosecutor in the same Member State or that he/she conduct the investigations himself/herself in accordance with Article 28(3) and (4).

SECTION 2

Appointment and dismissal of the members of the EPPO

Appointment and dismissal of the European Chief Prosecutor

1. The European Parliament and the Council shall appoint by common accord the European Chief Prosecutor for a non-renewable term of 7 years. The Council shall act by simple majority.

2. The European Chief Prosecutor shall be selected from among candidates:

(a)

who are active members of the public prosecution service or judiciary of the Member States, or active European Prosecutors;

(b)

whose independence is beyond doubt;

(c)

who possess the qualifications required for appointment to the highest prosecutorial or judicial offices in their respective Member States and have relevant practical experience of national legal systems, financial investigations and of international judicial cooperation in criminal matters, or have served as European Prosecutors, and

(d)

who have sufficient managerial experience and qualifications for the position.

3. The selection shall be based on an open call for candidates, to be published in the Official Journal of the European Union, following which a selection panel shall draw up a shortlist of qualified candidates to be submitted to the European Parliament and to the Council. The selection panel shall comprise twelve persons chosen from among former members of the Court of Justice and the Court of Auditors, former national members of Eurojust, members of national supreme courts, high level prosecutors and lawyers of recognised competence. One of the persons chosen shall be proposed by the European Parliament. The Council shall establish the selection panel’s operating rules and shall adopt a decision appointing its members on a proposal from the Commission.

4. If a European Prosecutor is appointed to be the European Chief Prosecutor, his/her position of European Prosecutor shall without delay be filled in accordance with the procedure set out in Article 16(1) and (2).

5. The Court of Justice may, upon the application of the European Parliament, of the Council or of the Commission, dismiss the European Chief Prosecutor if it finds that he/she is no longer able to perform his/her duties, or that he/she is guilty of serious misconduct.

6. If the European Chief Prosecutor resigns, if he/she is dismissed or leaves his/her position for any reason, the position shall immediately be filled in accordance with the procedure set out in paragraphs 1, 2 and 3.

Article 15

Appointment and dismissal of the Deputy European Chief Prosecutors

1. The College shall appoint two European Prosecutors to serve as Deputy European Chief Prosecutors for a renewable mandate period of 3 years, which shall not exceed the periods for their mandates as European Prosecutors. The selection process shall be regulated by the internal rules of procedure of the EPPO. The Deputy European Chief Prosecutors shall retain their status as European Prosecutors.

2. The rules and conditions for the exercise of the function of Deputy European Chief Prosecutor shall be set out in the internal rules of procedure of the EPPO. If a European Prosecutor is no longer able to perform his/her duties as Deputy European Chief Prosecutor, the College may decide in accordance with the internal rules of procedure of the EPPO to dismiss the Deputy European Chief Prosecutor from that position.

3. If a Deputy European Chief Prosecutor resigns, is dismissed or leaves his/her position as a Deputy European Chief Prosecutor for any reason, the position shall, without delay, be filled in accordance with the procedure set out in paragraph 1 of this Article. Subject to the rules in Article 16, he/she shall remain European Prosecutor.

Appointment and dismissal of the European Prosecutors

1. Each Member State shall nominate three candidates for the position of European Prosecutor from among candidates:

(a)

who are active members of the public prosecution service or judiciary of the relevant Member State;

(b)

whose independence is beyond doubt; and

(c)

who possess the qualifications required for appointment to high prosecutorial or judicial office in their respective Member States, and who have relevant practical experience of national legal systems, of financial investigations and of international judicial cooperation in criminal matters.

2. After having received the reasoned opinion of the selection panel referred to in Article 14(3), the Council shall select and appoint one of the candidates to be the European Prosecutor of the Member State in question. If the selection panel finds that a candidate does not fulfil the conditions required for the performance of the duties of a European Prosecutor, its opinion shall be binding on the Council.

3. The Council, acting by simple majority, shall select and appoint the European Prosecutors for a non-renewable term of 6 years. The Council may decide to extend the mandate for a maximum of 3 years at the end of the 6-year period.

4. Every 3 years there shall be a partial replacement of one third of the European Prosecutors. The Council, acting by simple majority, shall adopt transitional rules for the appointment of European Prosecutors for and during the first mandate period.

5. The Court of Justice may, upon application of the European Parliament, of the Council or of the Commission, dismiss a European Prosecutor if it finds that he/she is no longer able to perform his/her duties or that he/she is guilty of serious misconduct.

6. If a European Prosecutor resigns, is dismissed or leaves his/her position for any other reason, the position shall without delay be filled in accordance with the procedure set out in paragraphs 1 and 2. If the European Prosecutor in question also serves as Deputy European Chief Prosecutor, he/she shall automatically be dismissed from the latter position.

7. The College shall, upon nomination of each European Prosecutor, designate one of the European Delegated Prosecutors of the same Member State to substitute the European Prosecutor in case he/she is unable to carry out his/her functions or left his/her position according to paragraphs 5 and 6.

Where the College acknowledges the need for substitution, the designated person shall act as an interim European Prosecutor, pending replacement or return of the European Prosecutor, for a period not exceeding 3 months. The College may, upon request, prolong that period if necessary. The mechanisms and modalities of temporary substitution shall be determined and governed by the internal rules of procedure of the EPPO.

Appointment and dismissal of the European Delegated Prosecutors

1. Upon a proposal by the European Chief Prosecutor, the College shall appoint the European Delegated Prosecutors nominated by the Member States. The College may reject a person who has been nominated if he/she does not fulfil the criteria referred to in paragraph 2. The European Delegated Prosecutors shall be appointed for a renewable term of 5 years.

2. The European Delegated Prosecutors shall, from the time of their appointment as European Delegated Prosecutors until dismissal, be active members of the public prosecution service or judiciary of the respective Member States which nominated them. Their independence shall be beyond doubt and they shall possess the necessary qualifications and relevant practical experience of their national legal system.

3. The College shall dismiss a European Delegated Prosecutor if it finds that he/she no longer fulfils the requirements set out in paragraph 2, is unable to perform his/her duties, or is guilty of serious misconduct.

4. If a Member State decides to dismiss, or to take disciplinary action against, a national prosecutor who has been appointed as European Delegated Prosecutor for reasons not connected with his/her responsibilities under this Regulation, it shall inform the European Chief Prosecutor before taking such action. A Member State may not dismiss, or take disciplinary action against, a European Delegated Prosecutor for reasons connected with his/her responsibilities under this Regulation without the consent of the European Chief Prosecutor. If the European Chief Prosecutor does not consent, the Member State concerned may request the College to review the matter.

5. If a European Delegated Prosecutor resigns, if his/her services are no longer necessary to fulfil the duties of the EPPO, or if he/she is dismissed or leaves his/her position for any other reason, the relevant Member State shall immediately inform the European Chief Prosecutor and, where necessary, nominate another prosecutor to be appointed as the new European Delegated Prosecutor in accordance with paragraph 1.

Article 18

Status of the Administrative Director

1. The Administrative Director shall be engaged as a temporary agent of the EPPO under Article 2(a) of the Conditions of Employment.

2. The Administrative Director shall be appointed by the College from a list of candidates proposed by the European Chief Prosecutor, following an open and transparent selection procedure in accordance with the internal rules of procedure of the EPPO. For the purpose of concluding the contract of the Administrative Director, the EPPO shall be represented by the European Chief Prosecutor.

3. The term of office of the Administrative Director shall be 4 years. By the end of that period, the College shall undertake an assessment which takes into account an evaluation of the performance of the Administrative Director.

4. The College, acting on a proposal from the European Chief Prosecutor which takes into account the assessment referred to in paragraph 3, may extend once the term of office of the Administrative Director for a period of no more than 4 years.

5. An Administrative Director whose term of office has been extended may not participate in another selection procedure for the same post at the end of the overall period.

6. The Administrative Director shall be accountable to the European Chief Prosecutor and the College.

7. Upon a decision of the College on the basis of a two-thirds majority of its members and without prejudice to the applicable rules pertaining to the termination of contract in the Staff Regulations and the Conditions of Employment, the Administrative Director may be removed from the EPPO.

Responsibilities of the Administrative Director

1. For administrative and budgetary purposes, the EPPO shall be managed by its Administrative Director.

2. Without prejudice to the powers of the College or the European Chief Prosecutor, the Administrative Director shall be independent in the performance of his/her duties and shall neither seek nor take instructions from any government or any other body.

3. The Administrative Director shall be the legal representative of the EPPO for administrative and budgetary purposes. The Administrative Director shall implement the budget of the EPPO.

4. The Administrative Director shall be responsible for the implementation of the administrative tasks assigned to the EPPO, in particular:

(a)

the day-to-day administration of the EPPO and staff management;

(b)

implementing the decisions adopted by the European Chief Prosecutor or the College;

(c)

preparing a proposal for the annual and multi-annual programming document and submitting it to the European Chief Prosecutor;

(d)

implementing the annual and multi-annual programming documents and reporting to the College on their implementation;

(e)

preparing the administrative and budgetary parts of the annual report on the EPPO’s activities;

(f)

preparing an action plan following-up on the conclusions of the internal or external audit reports, evaluations and investigations, including those of the European Data Protection Supervisor and OLAF and reporting to them and to the College twice a year;

(g)

preparing an internal anti-fraud strategy for the EPPO and presenting it to the College for approval;

(h)

preparing a proposal for the draft financial rules applicable to the EPPO, and submitting it to the European Chief Prosecutor;

(i)

preparing a proposal for the EPPO’s draft statement of estimates of revenues and expenditures, and submitting it to the European Chief Prosecutor;

(j)

providing necessary administrative support to facilitate the operational work of the EPPO;

(k)

providing support to the European Chief Prosecutor and the Deputy European Chief Prosecutors in the carrying out of their duties.

Article 20

Provisional administrative arrangements of the EPPO

1. Based on provisional budgetary appropriations allocated in its own budget, the Commission shall be responsible for the establishment and initial administrative operation of the EPPO until the latter has the capacity to implement its own budget. For that purpose the Commission may:

(a)

designate, after consulting with the Council, a Commission official to act as interim Administrative Director and exercise the duties assigned to the Administrative Director, including the powers conferred by the Staff Regulations and the Conditions of Employment on the appointing authority regarding administrative staff of the EPPO, in respect of any staff positions which need to be filled before the Administrative Director takes up his or her duties in accordance with Article 18;

(b)

offer assistance to the EPPO, in particular by seconding a limited number of Commission officials necessary to carry out the administrative activities of the EPPO under the responsibility of the interim Administrative Director.

2. The interim Administrative Director may authorise all payments covered by appropriations entered in the EPPO’s budget and may conclude contracts, including staff contracts.

3. Once the College takes up its duties in accordance with Article 9(1), the interim Administrative Director shall exercise his/her duties in accordance with Article 18. The interim Administrative Director shall cease to exercise that function once the Administrative Director has taken up duties following appointment by the College in accordance with Article 18.

4. Until the College takes up its duties in accordance with Article 9(1), the Commission shall exercise its functions set out in this Article in consultation with a group of experts composed of representatives of the Member States.

SECTION 3

Internal rules of procedure of the EPPO

Internal rules of procedure of the EPPO

1. The organisation of the work of the EPPO shall be governed by its internal rules of procedure

2. Once the EPPO has been set up, the European Chief Prosecutor shall without delay prepare a proposal for the internal rules of procedure of the EPPO, to be adopted by the College by a two-thirds majority.

3. Modifications to the internal rules of procedure of the EPPO may be proposed by any European Prosecutor and shall be adopted if the College so decides by a two-thirds majority.

CHAPTER IV

COMPETENCE AND EXERCISE OF THE COMPETENCE OF THE EPPO

SECTION 1

Competence of the EPPO

Material competence of the EPPO

1. The EPPO shall be competent in respect of the criminal offences affecting the financial interests of the Union that are provided for in Directive (EU) 2017/1371, as implemented by national law, irrespective of whether the same criminal conduct could be classified as another type of offence under national law. As regards offences referred to in point (d) of Article 3(2) of Directive (EU) 2017/1371, as implemented by national law, the EPPO shall only be competent when the intentional acts or omissions defined in that provision are connected with the territory of two or more Member States and involve a total damage of at least EUR 10 million.

2. The EPPO shall also be competent for offences regarding participation in a criminal organisation as defined in Framework Decision 2008/841/JHA, as implemented in national law, if the focus of the criminal activity of such a criminal organisation is to commit any of the offences referred to in paragraph 1.

3. The EPPO shall also be competent for any other criminal offence that is inextricably linked to criminal conduct that falls within the scope of paragraph 1 of this Article. The competence with regard to such criminal offences may only be exercised in conformity with Article 25(3).

4. In any case, the EPPO shall not be competent for criminal offences in respect of national direct taxes including offences inextricably linked thereto. The structure and functioning of the tax administration of the Member States shall not be affected by this Regulation.

Territorial and personal competence of the EPPO

The EPPO shall be competent for the offences referred to in Article 22 where such offences:

(a)

were committed in whole or in part within the territory of one or several Member States;

(b)

were committed by a national of a Member State, provided that a Member State has jurisdiction for such offences when committed outside its territory, or

(c)

were committed outside the territories referred to in point (a) by a person who was subject to the Staff Regulations or to the Conditions of Employment, at the time of the offence, provided that a Member State has jurisdiction for such offences when committed outside its territory.

SECTION 2

Exercise of the competence of the EPPO

Reporting, registration and verification of information

1. The institutions, bodies, offices and agencies of the Union and the authorities of the Member States competent under applicable national law shall without undue delay report to the EPPO any criminal conduct in respect of which it could exercise its competence in accordance with Article 22, Article 25(2) and (3).

2. When a judicial or law enforcement authority of a Member State initiates an investigation in respect of a criminal offence for which the EPPO could exercise its competence in accordance with Article 22, Article 25(2) and (3), or where, at any time after the initiation of an investigation, it appears to the competent judicial or law enforcement authority of a Member State that an investigation concerns such an offence, that authority shall without undue delay inform the EPPO so that the latter can decide whether to exercise its right of evocation in accordance with Article 27.

3. When a judicial or law enforcement authority of a Member State initiates an investigation in respect of a criminal offence as defined in Article 22 and considers that the EPPO could, in accordance with Article 25(3), not exercise its competence, it shall inform the EPPO thereof.

4. The report shall contain, as a minimum, a description of the facts, including an assessment of the damage caused or likely to be caused, the possible legal qualification and any available information about potential victims, suspects and any other involved persons.

5. The EPPO shall also be informed, in accordance with paragraphs 1 and 2 of this Article, of cases where an assessment of whether the criteria in Article 25(2) are met is not possible.

6. Information provided to the EPPO shall be registered and verified in accordance with its internal rules of procedure. The verification shall assess whether, on the basis of the information provided in accordance with paragraphs 1 and 2, there are grounds to initiate an investigation or to exercise the right of evocation.

7. Where upon verification the EPPO decides that there are no grounds to initiate an investigation in accordance with Article 26, or to exercise its right of evocation in accordance with Article 27, the reasons shall be noted in the case management system.

The EPPO shall inform the authority that reported the criminal conduct in accordance with paragraph 1 or 2, as well as crime victims and if so provided by national law, other persons who reported the criminal conduct.

8. Where it comes to the knowledge of the EPPO that a criminal offence outside of the scope of the competence of the EPPO may have been committed, it shall without undue delay inform the competent national authorities and forward all relevant evidence to them.

9. In specific cases, the EPPO may request further relevant information available to the institutions, bodies, offices and agencies of the Union and the authorities of the Member States. The requested information may concern infringements which caused damage to the Union’s financial interests, other than those within the competence of the EPPO in accordance with Article 25(2).

10. The EPPO may request other information in order to enable the College, in accordance with Article 9(2), to issue general guidelines on the interpretation of the obligation to inform the EPPO of cases falling within the scope of Article 25(2).

Exercise of the competence of the EPPO

1. The EPPO shall exercise its competence either by initiating an investigation under Article 26 or by deciding to use its right of evocation under Article 27. If the EPPO decides to exercise its competence, the competent national authorities shall not exercise their own competence in respect of the same criminal conduct.

2. Where a criminal offence that falls within the scope of Article 22 caused or is likely to cause damage to the Union’s financial interests of less than EUR 10 000, the EPPO may only exercise its competence if:

(a)

the case has repercussions at Union level which require an investigation to be conducted by the EPPO; or

(b)

officials or other servants of the Union, or members of the institutions of the Union could be suspected of having committed the offence.

The EPPO shall, where appropriate, consult the competent national authorities or bodies of the Union to establish whether the criteria set out in points (a) and (b) of the first subparagraph are met.

3. The EPPO shall refrain from exercising its competence in respect of any offence falling within the scope of Article 22 and shall, upon consultation with the competent national authorities, refer the case without undue delay to the latter in accordance with Article 34 if:

(a)

the maximum sanction provided for by national law for an offence falling within the scope of Article 22(1) is equal to or less severe than the maximum sanction for an inextricably linked offence as referred to in Article 22(3) unless the latter offence has been instrumental to commit the offence falling within the scope of Article 22(1); or

(b)

there is a reason to assume that the damage caused or likely to be caused, to the Union’s financial interests by an offence as referred to in Article 22 does not exceed the damage caused, or likely to be caused to another victim.

Point (b) of the first subparagraph of this paragraph shall not apply to offences referred to in Article 3(2)(a), (b) and (d) of Directive (EU) 2017/1371 as implemented by national law.

4. The EPPO may, with the consent of the competent national authorities, exercise its competence for offences referred to in Article 22 in cases which would otherwise be excluded due to application of paragraph 3(b) of this Article if it appears that the EPPO is better placed to investigate or prosecute.

5. The EPPO shall inform the competent national authorities without undue delay of any decision to exercise or to refrain from exercising its competence.

6. In the case of disagreement between the EPPO and the national prosecution authorities over the question of whether the criminal conduct falls within the scope of Article 22(2), or (3) or Article 25(2) or (3), the national authorities competent to decide on the attribution of competences concerning prosecution at national level shall decide who is to be competent for the investigation of the case. Member States shall specify the national authority which will decide on the attribution of competence.

CHAPTER V

RULES OF PROCEDURE ON INVESTIGATIONS, INVESTIGATION MEASURES, PROSECUTION AND ALTERNATIVES TO PROSECUTION

SECTION 1

Rules on investigations

Initiation of investigations and allocation of competences within the EPPO

1. Where, in accordance with the applicable national law, there are reasonable grounds to believe that an offence within the competence of the EPPO is being or has been committed, a European Delegated Prosecutor in a Member State which according to its national law has jurisdiction over the offence shall, without prejudice to the rules set out in Article 25(2) and (3), initiate an investigation and note this in the case management system.

2. Where upon verification in accordance with Article 24(6), the EPPO decides to initiate an investigation, it shall without undue delay inform the authority that reported the criminal conduct in accordance with Article 24(1) or (2).

3. Where no investigation has been initiated by a European Delegated Prosecutor, the Permanent Chamber to which the case has been allocated shall, under the conditions set out in paragraph 1, instruct a European Delegated Prosecutor to initiate an investigation.

4. A case shall as a rule be initiated and handled by a European Delegated Prosecutor from the Member State where the focus of the criminal activity is or, if several connected offences within the competences of the EPPO have been committed, the Member State where the bulk of the offences has been committed. A European Delegated Prosecutor of a different Member State that has jurisdiction for the case may only initiate or be instructed by the competent Permanent Chamber to initiate an investigation where a deviation from the rule set out in the previous sentence is duly justified, taking into account the following criteria, in order of priority:

(a)

the place of the suspect’s or accused person’s habitual residence;

(b)

the nationality of the suspect or accused person;

(c)

the place where the main financial damage has occurred.

5. Until a decision to prosecute under Article 36 is taken, the competent Permanent Chamber may, in a case concerning the jurisdiction of more than one Member State and after consultation with the European Prosecutors and/or European Delegated Prosecutors concerned, decide to:

(a)

reallocate the case to a European Delegated Prosecutor in another Member State;

(b)

merge or split cases and, for each case choose the European Delegated Prosecutor handling it,

if such decisions are in the general interest of justice and in accordance with the criteria for the choice of the handling European Delegated Prosecutor in accordance with paragraph 4 of this Article.

6. Whenever the Permanent Chamber is taking a decision to reallocate, merge or split a case, it shall take due account of the current state of the investigations.

7. The EPPO shall inform the competent national authorities without undue delay of any decision to initiate an investigation.

Right of evocation

1. Upon receiving all relevant information in accordance with Article 24(2), the EPPO shall take its decision on whether to exercise its right of evocation as soon as possible, but no later than 5 days after receiving the information from the national authorities and shall inform the national authorities of that decision. The European Chief Prosecutor may in a specific case take a reasoned decision to prolong the time limit by a maximum period of 5 days, and shall inform the national authorities accordingly.

2. During the periods referred to in paragraph 1, the national authorities shall refrain from taking any decision under national law that may have the effect of precluding the EPPO from exercising its right of evocation.

The national authorities shall take any urgent measures necessary, under national law, to ensure effective investigation and prosecution.

3. If the EPPO becomes aware, by means other than the information referred to in Article 24(2), of the fact that an investigation in respect of a criminal offence for which it could be competent is already undertaken by the competent authorities of a Member State, it shall inform these authorities without delay. After being duly informed in accordance with Article 24(2), the EPPO shall take a decision on whether to exercise its right of evocation. The decision shall be taken within the time limits set out in paragraph 1 of this Article.

4. The EPPO shall, where appropriate, consult the competent authorities of the Member State concerned before deciding whether to exercise its right of evocation.

5. Where the EPPO exercises its right of evocation, the competent authorities of the Member States shall transfer the file to the EPPO and refrain from carrying out further acts of investigation in respect of the same offence.

6. The right of evocation set out in this Article may be exercised by a European Delegated Prosecutor from any Member State whose competent authorities have initiated an investigation in respect of an offence that falls within the scope of Articles 22 and 23.

Where a European Delegated Prosecutor, who has received the information in accordance with Article 24(2), considers not to exercise the right of evocation, he/she shall inform the competent Permanent Chamber through the European Prosecutor of his/her Member State with a view to enabling the Permanent Chamber to take a decision in accordance with Article 10(4).

7. Where the EPPO has refrained from exercising its competence, it shall inform the competent national authorities without undue delay. At any time in the course of the proceedings, the competent national authorities shall inform the EPPO of any new facts which could give the EPPO reasons to reconsider its decision not to exercise competence.

The EPPO may exercise its right of evocation after receiving such information, provided that the national investigation has not already been finalised and that an indictment has not been submitted to a court. The decision shall be taken within the time limit set out in paragraph 1.

8. Where, with regard to offences which caused or are likely to cause damage to the Union’s financial interests of less than EUR 100 000, the College considers that, with reference to the degree of seriousness of the offence or the complexity of the proceedings in the individual case, there is no need to investigate or to prosecute at Union level, it shall in accordance with Article 9(2), issue general guidelines allowing the European Delegated Prosecutors to decide, independently and without undue delay, not to evoke the case.

The guidelines shall specify, with all necessary details, the circumstances to which they apply, by establishing clear criteria, taking specifically into account the nature of the offence, the urgency of the situation and the commitment of the competent national authorities to take all necessary measures in order to fully recover the damage to the Union’s financial interests.

9. To ensure coherent application of the guidelines, a European Delegated Prosecutor shall inform the competent Permanent Chamber of each decision taken in accordance with paragraph 8 and each Permanent Chamber shall report annually to the College on the application of the guidelines.

Conducting the investigation

1. The European Delegated Prosecutor handling a case may, in accordance with this Regulation and with national law, either undertake the investigation measures and other measures on his/her own or instruct the competent authorities in his/her Member State. Those authorities shall, in accordance with national law, ensure that all instructions are followed and undertake the measures assigned to them. The handling European Delegated Prosecutor shall report through the case management system to the competent European Prosecutor and to the Permanent Chamber any significant developments in the case, in accordance with the rules laid down in the internal rules of procedure of the EPPO.

2. At any time during the investigations conducted by the EPPO, the competent national authorities shall take urgent measures in accordance with national law necessary to ensure effective investigations even where not specifically acting under an instruction given by the handling European Delegated Prosecutor. The national authorities shall without undue delay inform the handling European Delegated Prosecutor of the urgent measures they have taken.

3. The competent Permanent Chamber may, on proposal of the supervising European Prosecutor decide to reallocate a case to another European Delegated Prosecutor in the same Member State when the handling European Delegated Prosecutor:

(a)

cannot perform the investigation or prosecution; or

(b)

fails to follow the instructions of the competent Permanent Chamber or the European Prosecutor.

4. In exceptional cases, after having obtained the approval of the competent Permanent Chamber, the supervising European Prosecutor may take a reasoned decision to conduct the investigation personally, either by undertaking personally the investigation measures and other measures or by instructing the competent authorities in his/her Member State, where this appears to be indispensable in the interest of the efficiency to the investigation or prosecution by reasons of one or more of the following criteria:

(a)

the seriousness of the offence, in particular in view of its possible repercussions at Union level;

(b)

when the investigation concerns officials or other servants of the Union or members of the institutions of the Union;

(c)

in the event of failure of the reallocation mechanism provided for in paragraph 3.

In such exceptional circumstances Member States shall ensure that the European Prosecutor is entitled to order or request investigative measures and other measures and that he/she has all the powers, responsibilities and obligations of a European Delegated Prosecutor in accordance with this Regulation and national law.

The competent national authorities and the European Delegated Prosecutors concerned by the case shall be informed without undue delay of the decision taken under this paragraph.

Article 29

Lifting privileges or immunities

1. Where the investigations of the EPPO involve persons protected by a privilege or immunity under national law, and such privilege or immunity presents an obstacle to a specific investigation being conducted, the European Chief Prosecutor shall make a reasoned written request for its lifting in accordance with the procedures laid down by that national law.

2. Where the investigations of the EPPO involve persons protected by privileges or immunities under the Union law, in particular the Protocol on the privileges and immunities of the European Union, and such privilege or immunity presents an obstacle to a specific investigation being conducted, the European Chief Prosecutor shall make a reasoned written request for its lifting in accordance with the procedures laid down by Union law.

SECTION 2

Rules on investigation measures and other measures

Article 30

Investigation measures and other measures

1. At least in cases where the offence subject to the investigation is punishable by a maximum penalty of at least 4 years of imprisonment, Member States shall ensure that the European Delegated Prosecutors are entitled to order or request the following investigation measures:

(a)

search any premises, land, means of transport, private home, clothes and any other personal property or computer system, and take any conservatory measures necessary to preserve their integrity or to avoid the loss or contamination of evidence;

(b)

obtain the production of any relevant object or document either in its original form or in some other specified form;

(c)

obtain the production of stored computer data, encrypted or decrypted, either in their original form or in some other specified form, including banking account data and traffic data with the exception of data specifically retained in accordance with national law pursuant to the second sentence of Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council (20);

(d)

freeze instrumentalities or proceeds of crime, including assets, that are expected to be subject to confiscation by the trial court, where there is reason to believe that the owner, possessor or controller of those instrumentalities or proceeds will seek to frustrate the judgement ordering confiscation.

(e)

intercept electronic communications to and from the suspect or accused person, over any electronic communication means that the suspect or accused person is using;

(f)

track and trace an object by technical means, including controlled deliveries of goods.

2. Without prejudice to Article 29, the investigation measures set out in paragraph 1 of this Article may be subject to conditions in accordance with the applicable national law if the national law contains specific restrictions that apply with regard to certain categories of persons or professionals who are legally bound by an obligation of confidentiality.

3. The investigation measures set out in points(c), (e) and (f) of paragraph 1 of this Article may be subject to further conditions, including limitations, provided for in the applicable national law. In particular, Member States may limit the application of points (e) and (f) of paragraph 1 of this Article to specific serious offences. A Member State intending to make use of such limitation shall notify the EPPO of the relevant list of specific serious offences in accordance with Article 117.

4. The European Delegated Prosecutors shall be entitled to request or to order any other measures in their Member State that are available to prosecutors under national law in similar national cases, in addition to the measures referred to in paragraph 1.

5. The European Delegated Prosecutors may only order the measures referred to in paragraphs 1 and 4 where there are reasonable grounds to believe that the specific measure in question might provide information or evidence useful to the investigation, and where there is no less intrusive measure available which could achieve the same objective. The procedures and the modalities for taking the measures shall be governed by the applicable national law.

Cross-border investigations

1. The European Delegated Prosecutors shall act in close cooperation by assisting and regularly consulting each other in cross-border cases. Where a measure needs to be undertaken in a Member State other than the Member State of the handling European Delegated Prosecutor, the latter European Delegated Prosecutor shall decide on the adoption of the necessary measure and assign it to a European Delegated Prosecutor located in the Member State where the measure needs to be carried out.

2. The handling European Delegated Prosecutor may assign any measures, which are available to him/her in accordance with Article 30. The justification and adoption of such measures shall be governed by the law of the Member States’ of the handling European Delegated Prosecutor. Where the handling European Delegated Prosecutor assigns an investigation measure to one or several European Delegated Prosecutors from another Member State, he/she shall at the same time inform his supervising European Prosecutor.

3. If judicial authorisation for the measure is required under the law of the Member State of the assisting European Delegated Prosecutor, the assisting European Delegated Prosecutor shall obtain that authorisation in accordance with the law of that Member State.

If judicial authorisation for the assigned measure is refused, the handling European Delegated Prosecutor shall withdraw the assignment.

However, where the law of the Member State of the assisting European Delegated Prosecutor does not require such a judicial authorisation, but the law of the Member State of the handling European Delegated Prosecutor requires it, the authorisation shall be obtained by the latter European Delegated Prosecutor and submitted together with the assignment.

4. The assisting European Delegated Prosecutor shall undertake the assigned measure, or instruct the competent national authority to do so.

5. Where the assisting European Delegated Prosecutor considers that:

(a)

the assignment is incomplete or contains a manifest relevant error;

(b)

the measure cannot be undertaken within the time limit set out in the assignment for justified and objective reasons;

(c)

an alternative but less intrusive measure would achieve the same results as the measure assigned; or

(d)

the assigned measure does not exist or would not be available in a similar domestic case under the law of his/her Member State,

he/she shall inform his supervising European Prosecutor and consult with the handling European Delegated Prosecutor in order to resolve the matter bilaterally.

6. If the assigned measure does not exist in a purely domestic situation, but would be available in a cross-border situation covered by legal instruments on mutual recognition or cross-border cooperation, the European Delegated Prosecutors concerned may, in agreement with the supervising European Prosecutors concerned, have recourse to such instruments.

7. If the European Delegated Prosecutors cannot resolve the matter within 7 working days and the assignment is maintained, the matter shall be referred to the competent Permanent Chamber. The same applies where the assigned measure is not undertaken within the time limit set out in the assignment or within a reasonable time.

8. The competent Permanent Chamber shall to the extent necessary hear the European Delegated Prosecutors concerned by the case and then decide without undue delay, in accordance with applicable national law as well as this Regulation, whether and by when the assigned measure needed, or a substitute measure, shall be undertaken by the assisting European Delegated Prosecutor, and communicate this decision to the said European Delegated Prosecutors through the competent European Prosecutor.

Enforcement of assigned measures

The assigned measures shall be carried out in accordance with this Regulation and the law of the Member State of the assisting European Delegated Prosecutor. Formalities and procedures expressly indicated by the handling European Delegated Prosecutor shall be complied with unless such formalities and procedures are contrary to the fundamental principles of law of the Member State of the assisting European Delegated Prosecutor.

Article 33

Pre-trial arrest and cross-border surrender

1. The handling European Delegated Prosecutor may order or request the arrest or pre-trial detention of the suspect or accused person in accordance with the national law applicable in similar domestic cases.

2. Where it is necessary to arrest and surrender a person who is not present in the Member State in which the handling European Delegated Prosecutor is located, the latter shall issue or request the competent authority of that Member State to issue a European Arrest Warrant in accordance with Council Framework Decision 2002/584/JHA (21).

SECTION 3

Rules on prosecution

Article 34

Referrals and transfers of proceedings to the national authorities

1. Where an investigation conducted by the EPPO reveals that the facts subject to investigation do not constitute a criminal offence for which it is competent under Articles 22 and 23, the competent Permanent Chamber shall decide to refer the case without undue delay to the competent national authorities.

2. Where an investigation conducted by the EPPO reveals that the specific conditions for the exercise of its competence set out in Article 25(2) and (3) are no longer met, the competent Permanent Chamber shall decide to refer the case to the competent national authorities without undue delay and before initiating prosecution at national courts.

3. Where, with regard to offences which caused or are likely to cause damage to the financial interests of the Union of less than EUR 100 000, the College considers that, with reference to the degree of seriousness of the offence or the complexity of the proceedings in the individual case, there is no need to investigate or to prosecute a case at Union level and that it would be in the interest of the efficiency of investigation or prosecution, it shall in accordance with Article 9(2), issue general guidelines allowing the Permanent Chambers to refer a case to the competent national authorities.

Such guidelines shall also allow the Permanent Chambers to refer a case to the competent national authorities where the EPPO exercises a competence in respect of offences referred to in points (a) and (b) of Article 3(2) of Directive (EU) 2017/1371 and where the damage caused or likely to be caused to the Union’s financial interests does not exceed the damage caused or likely to be caused to another victim.

To ensure coherent application of the guidelines, each Permanent Chamber shall report annually to the College on the application of the guidelines.

Such referrals shall also include any inextricably linked offences within the competence of the EPPO as referred to in Article 22(3).

4. The Permanent Chamber shall communicate any decision to refer a case to national authorities on the basis of paragraph 3 to the European Chief Prosecutor. Within 3 days of receiving of this information, the European Chief Prosecutor may request the Permanent Chamber to review its decision if the European Chief Prosecutor considers that the interest to ensure the coherence of the referral policy of the EPPO so requires. If the European Chief Prosecutor is a Member of the relevant Permanent Chamber, one of the Deputy European Chief Prosecutors shall exercise the right to request the said review.

5. Where the competent national authorities do not accept to take over the case in accordance with paragraph 2 and 3 within a timeframe of maximum 30 days, the EPPO shall remain competent to prosecute or dismiss the case, in accordance with the rules laid down in this Regulation.

6. Where the EPPO considers a dismissal in accordance with Article 39(3), and if the national authority so requires, the Permanent Chamber shall refer the case without delay to that authority.

7. If, following a referral in accordance with paragraph (1), (2) or (3) of this Article and Article 25(3), the national authority decides to open an investigation, the EPPO shall transfer the file to that national authority, refrain from taking further investigative or prosecutorial measures and close the case.

8. If a file is transferred in accordance with paragraph (1), (2) or (3) of this Article and Article 25(3), the EPPO shall inform the relevant institutions, bodies, offices and agencies of the Union, as well as, where appropriate under national law, suspects or accused persons and the crime victims of the transfer.

Article 35

Termination of the investigation

1. When the handling European Delegated Prosecutor considers the investigation to be completed, he/she shall submit a report to the supervising European Prosecutor, containing a summary of the case and a draft decision whether to prosecute before a national court or to consider a referral of the case, dismissal or simplified prosecution procedure in accordance with Article 34, 39 or 40. The supervising European Prosecutor shall forward those documents to the competent Permanent Chamber accompanied, if he/she considers it to be necessary, by his/her own assessment. When the Permanent Chamber, in accordance with Article 10(3), takes the decision as proposed by the European Delegated Prosecutor, he/she shall pursue the matter accordingly.

2. If the Permanent Chamber, based on the reports received, considers that it will not take the decision as proposed by the European Delegated Prosecutor, it shall, where necessary, undertake its own review of the case file before taking a final decision or giving further instructions to the European Delegated Prosecutor.

3. Where applicable, the report of the European Delegated Prosecutor shall also provide sufficient reasoning for bringing the case to judgment either at a court of the Member State where he/she is located, or, in accordance with Article 26(4) at a court of a different Member State which has jurisdiction over the case.

Article 36

Prosecution before national Courts

1. When the European Delegated Prosecutor submits a draft decision proposing to bring a case to judgment, the Permanent Chamber shall, following the procedures set out in Article 35, decide on this draft within 21 days. The Permanent Chamber cannot decide to dismiss the case if a draft decision proposes bringing a case to judgment.

2. Where the Permanent Chamber does not take a decision within the 21-day time limits, the decision proposed by the European Delegated Prosecutor shall be deemed to be accepted.

3. Where more than one Member State has jurisdiction over the case, the Permanent Chamber shall in principle decide to bring the case to prosecution in the Member State of the handling European Delegated Prosecutor. However, the Permanent Chamber may, taking into account the report provided in accordance with Article 35(1), decide to bring the case to prosecution in a different Member State, if there are sufficiently justified grounds to do so, taking into account the criteria set out in Article 26(4) and (5), and instruct a European Delegated Prosecutor of that Member State accordingly.

4. Before deciding to bring a case to judgment, the competent Permanent Chamber may, on the proposal of the handling European Delegated Prosecutor, decide to join several cases, where investigations have been conducted by different European Delegated Prosecutors against the same person(s) with a view to prosecuting these cases in the courts of a single Member State which, in accordance with its law, has jurisdiction for each of those cases.

5. Once a decision on the Member State in which the prosecution shall be brought has been taken, the competent national court within that Member State shall be determined on the basis of national law.

6. Where necessary for the purposes of recovery, administrative follow-up or monitoring, the Central Office shall notify the competent national authorities, interested persons and the relevant institutions, bodies, offices and agencies of the Union of the decision to prosecute.

7. Where, following a judgment of the Court, the prosecution has to decide whether to lodge an appeal, the European Delegated Prosecutor shall submit a report including a draft decision to the competent Permanent Chamber and await its instructions. Should it be impossible to await those instructions within the deadline set by national law, the European Delegated Prosecutor shall be entitled to lodge the appeal without prior instructions from the Permanent Chamber, and shall subsequently submit the report to the Permanent Chamber without delay. The Permanent Chamber shall then instruct the European Delegated Prosecutor either to maintain or withdraw the appeal. The same procedure shall apply when, in the course of the court proceedings and in accordance with applicable national law, the handling European Delegated Prosecutor would take a position that would lead to the dismissal of the case.

Evidence

1. Evidence presented by the prosecutors of the EPPO or the defendant to a court shall not be denied admission on the mere ground that the evidence was gathered in another Member State or in accordance with the law of another Member State.

2. The power of the trial court to freely assess the evidence presented by the defendant or the prosecutors of the EPPO shall not be affected by this Regulation.

Article 38

Disposition of confiscated assets

Where, in accordance with the requirements and procedures under national law including the national law transposing Directive 2014/42/EU of the European Parliament and of the Council (22), the competent national court has decided by a final ruling to confiscate any property related to, or proceeds derived from, an offence within the competence of the EPPO, such assets or proceeds shall be disposed of in accordance with applicable national law. This disposition shall not negatively affect the rights of the Union or other victims to be compensated for damage that they have incurred.

SECTION 4

Rules on alternatives to prosecution

Dismissal of the case

1. Where prosecution has become impossible, pursuant to the law of the Member State of the handling European Delegated Prosecutor, the Permanent Chamber shall, based on a report provided by the European Delegated Prosecutor handling the case in accordance with Article 35(1), decide to dismiss the case against a person on account of any of the following grounds:

(a)

the death of the suspect or accused person or winding up of a suspect or accused legal person;

(b)

the insanity of the suspect or accused person;

(c)

amnesty granted to the suspect or accused person;

(d)

immunity granted to the suspect or accused person, unless it has been lifted;

(e)

expiry of the national statutory limitation to prosecute;

(f)

the suspect’s or accused person’s case has already been finally disposed of in relation to the same acts;

(g)

the lack of relevant evidence.

2. A decision in accordance with paragraph 1 shall not bar further investigations on the basis of new facts which were not known to the EPPO at the time of the decision and which become known after the decision. The decision to reopen investigations on the basis of such new facts shall be taken by the competent Permanent Chamber.

3. Where the EPPO is competent in accordance with Article 22(3), it shall dismiss a case only after consultation with the national authorities of the Member State referred to in Article 25(6). If applicable, the Permanent Chamber shall refer the case to the competent national authorities in accordance with Article 34(6), (7) and (8).

The same applies where the EPPO exercises a competence in respect of offences referred to in points (a) and (b) of Article 3(2) of Directive (EU) 2017/1371 and where the damage caused or likely to be caused to the Union’s financial interests does not exceed the damage caused or likely to be caused to another victim.

4. Where a case has been dismissed, the EPPO shall officially notify the competent national authorities and shall inform the relevant institutions, bodies, offices and agencies of the Union, as well as, where appropriate under national law, the suspects or accused persons and the crime victims, of such dismissal. The dismissed cases may also be referred to OLAF or to the competent national administrative or judicial authorities for recovery or other administrative follow-up.

SECTION 5

Rules on simplified procedures

Simplified prosecution procedures

1. If the applicable national law provides for a simplified prosecution procedure aiming at the final disposal of a case on the basis of terms agreed with the suspect, the handling European Delegated Prosecutor may, in accordance with Article 10(3) and Article 35(1), propose to the competent Permanent Chamber to apply that procedure in accordance with the conditions provided for in national law.

Where the EPPO exercises a competence in respect of offences referred to in points (a) and (b) of Article 3(2) of Directive (EU) 2017/1371 and where the damage caused or likely to be caused to the Union’s financial interest does not exceed the damage caused or likely to be caused to another victim, the handling European Delegated Prosecutor shall consult national prosecution authorities before proposing to apply a simplified prosecution procedure.

2. The Permanent Chamber shall decide on the proposal of the handling European Delegated Prosecutor taking into account the following grounds:

(a)

the seriousness of the offence, based on in particular the damage caused;

(b)

the willingness of the suspected offender to repair the damage caused by the illegal conduct;

(c)

the use of the procedure would be in accordance with the general objectives and basic principles of the EPPO as set out in this Regulation.

The College shall, in accordance with Article 9(2), adopt guidelines on the application of those grounds.

3. If the Permanent Chamber agrees with the proposal, the handling European Delegated Prosecutor shall apply the simplified prosecution procedure in accordance with the conditions provided for in national law and register it in the case management system. When the simplified prosecution procedure has been finalised upon fulfilment of the terms agreed with the suspect, the Permanent Chamber shall instruct the European Delegated Prosecutor to act with a view to finally dispose of the case.

CHAPTER VI

PROCEDURAL SAFEGUARDS

Article 41

Scope of the rights of the suspects and accused persons

1. The activities of the EPPO shall be carried out in full compliance with the rights of suspects and accused persons enshrined in the Charter, including the right to a fair trial and the rights of defence.

2. Any suspected or accused person in the criminal proceedings of the EPPO shall, at aa minimum, have the procedural rights provided for in Union law, including directives concerning the rights of suspects and accused persons in criminal procedures, as implemented by national law, such as:

(a)

the right to interpretation and translation, as provided for in Directive 2010/64/EU;

(b)

the right to information and access to the case materials, as provided for in Directive 2012/13/EU;

(c)

the right of access to a lawyer and the right to communicate with and have third persons informed in the event of detention, as provided for in Directive 2013/48/EU;

(d)

the right to remain silent and the right to be presumed innocent as provided for in Directive (EU) 2016/343;

(e)

the right to legal aid as provided for in Directive (EU) 2016/1919.

3. Without prejudice to the rights referred to in this Chapter, suspects and accused persons as well as other persons involved in the proceedings of the EPPO shall have all the procedural rights available to them under the applicable national law, including the possibility to present evidence, to request the appointment of experts or expert examination and hearing of witnesses, and to request the EPPO to obtain such measures on behalf of the defence.

Judicial review

1. Procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties shall be subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law. The same applies to failures of the EPPO to adopt procedural acts which are intended to produce legal effects vis-à-vis third parties and which it was legally required to adopt under this Regulation.

2. The Court of Justice shall have jurisdiction, in accordance with Article 267 TFEU, to give preliminary rulings concerning:

(a)

the validity of procedural acts of the EPPO, in so far as such a question of validity is raised before any court or tribunal of a Member State directly on the basis of Union law;

(b)

the interpretation or the validity of provisions of Union law, including this Regulation;

(c)

the interpretation of Articles 22 and 25 of this Regulation in relation to any conflict of competence between the EPPO and the competent national authorities.

3. By way of derogation from paragraph 1 of this Article, the decisions of the EPPO to dismiss a case, in so far as they are contested directly on the basis of Union law, shall be subject to review before the Court of Justice in accordance with the fourth paragraph of Article 263 TFEU.

4. The Court of Justice shall have jurisdiction in accordance with Article 268 TFEU in any dispute relating to compensation for damage caused by the EPPO.

5. The Court of Justice shall have jurisdiction in accordance with Article 272 TFEU in any dispute concerning arbitration clauses contained in contracts concluded by the EPPO.

6. The Court of Justice shall have jurisdiction in accordance with Article 270 TFEU in any dispute concerning staff-related matters.

7. The Court of Justice shall have jurisdiction on the dismissal of the European Chief Prosecutor or European Prosecutors, in accordance, respectively, with Article 14(5) and Article 16(5).

8. This Article is without prejudice to judicial review by the Court of Justice in accordance with the fourth paragraph of Article 263 TFEU of decisions of the EPPO that affect the data subjects’ rights under Chapter VIII and of decisions of the EPPO which are not procedural acts, such as decisions of the EPPO concerning the right of public access to documents, or decisions dismissing European Delegated Prosecutors adopted pursuant to Article 17(3) of this Regulation, or any other administrative decisions.

CHAPTER VII

PROCESSING OF INFORMATION

Article 43

Access to information by the EPPO

1. European Delegated Prosecutors shall be able to obtain any relevant information stored in national criminal investigation and law enforcement databases, as well as other relevant registers of public authorities, under the same conditions as those that apply under national law in similar cases.

2. The EPPO shall also be able to obtain any relevant information falling within its competence that is stored in databases and registers of the institutions, bodies, offices and agencies of the Union.

Article 44

Case management system

1. The EPPO shall establish a case management system, which shall be held and managed in accordance with the rules established in this Regulation and in the internal rules of procedure of the EPPO.

2. The purpose of the case management system shall be to:

(a)

support the management of investigations and prosecutions conducted by the EPPO, in particular by managing internal information workflows and by supporting investigative work in cross-border cases;

(b)

ensure secure access to information on investigations and prosecutions at the Central Office and by the European Delegated Prosecutors;

(c)

allow for the cross-referencing of information and the extraction of data for operational analysis and statistical purposes;

(d)

facilitate monitoring to ensure that the processing of operational personal data is lawful and complies with the relevant provisions of this Regulation.

3. The case management system may be linked to the secure telecommunications connection referred to in Article 9 of Council Decision 2008/976/JHA (23).

4. The case management system shall contain:

(a)

a register of information obtained by the EPPO in accordance with Article 24, including any decisions in relation to that information,

(b)

an index of all case files;

(c)

all information from the case files stored electronically in the case management system in accordance with Article 45(3).

The index shall not contain any operational personal data other than data needed to identify cases or establish cross-links between different case files.

5. For the processing of operational personal data, the EPPO may only establish automated data files other than case files in accordance with this Regulation and with the internal rules of procedure of the EPPO. Details on such other automated data files shall be notified to the European Data Protection Supervisor.

Article 45

Case files of the EPPO

1. Where the EPPO decides to open an investigation or exercise its right of evocation in accordance with this Regulation, the handling European Delegated Prosecutor shall open a case file.

The case file shall contain all the information and evidence available to the European Delegated Prosecutor that relates to the investigation or prosecution by the EPPO.

Once an investigation has been opened, the information from the register referred to in Article 44(4)(a) shall become part of the case file.

2. The case file shall be managed by the handling European Delegated Prosecutor in accordance with the law of his/her Member State.

The internal rules of procedure of the EPPO may include rules on the organisation and management of the case files to the extent necessary to ensure the functioning of the EPPO as a single office. Access to the case file by suspects and accused persons as well as other persons involved in the proceedings shall be granted by the handling European Delegated Prosecutor in accordance with the national law of that Prosecutor’s Member State.

3. The case management system of the EPPO shall include all information and evidence from the case file that may be stored electronically, in order to enable the Central Office to carry out its functions in accordance with this Regulation. The handling European Delegated Prosecutor shall ensure that the content of information in the case management system reflects at all times the case file, in particular that operational personal data contained in the case management system is erased or rectified whenever such data has been erased or rectified in the corresponding case file.

Article 46

Access to the case management system

The European Chief Prosecutor, the Deputy European Chief Prosecutors, other European Prosecutors and the European Delegated Prosecutors shall have direct access to the register and to the index.

The supervising European Prosecutor as well as the competent Permanent Chamber shall, when exercising their competences in accordance with Articles 10 and 12, have direct access to information stored electronically in the case management system. The supervising European Prosecutor shall also have direct access to the case file. The competent Permanent Chamber shall have access to the case file at its request.

Other European Delegated Prosecutors may request access to information stored electronically in the case management system as well as any case file. The handling European Delegated Prosecutor shall decide on granting such access to other European Delegated Prosecutors in accordance with applicable national law. If the access is not granted, the matter may be referred to the competent Permanent Chamber. The competent Permanent Chamber shall, to the extent necessary, hear the European Delegated Prosecutors concerned and then decide in accordance with applicable national law as well as this Regulation.

The internal rules of procedure of the EPPO shall set out further rules regarding the right to access, and the procedure to establish the level of access to the case management system by the European Chief Prosecutor, the Deputy European Chief Prosecutors, other European Prosecutors, the European Delegated Prosecutors and the staff of the EPPO, to the extent required for the performance of their duties.

CHAPTER VIII

DATA PROTECTION

Principles relating to processing of personal data

1. Personal data shall be:

(a)

processed lawfully and fairly (‘lawfulness and fairness’);

(b)

collected for specified, explicit and legitimate purposes and not further processed in a manner incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial purposes provided that the EPPO provides appropriate safeguards for the rights and freedoms of data subjects (‘purpose limitation’);

(c)

adequate, relevant, and not excessive in relation to the purposes for which they are processed (‘data minimisation’);

(d)

accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);

(e)

kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes provided that the EPPO provides appropriate safeguards for the rights and freedoms of data subjects, in particular by the implementation of the appropriate technical and organisational measures required by this Regulation (‘storage limitation’);

(f)

processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).

2. The EPPO shall be responsible for, and be able to demonstrate compliance with paragraph 1 (‘accountability’) when processing personal data wholly or partly by automated means and when processing other than by automated means personal data which form part of a filing system or are intended to form part of a filing system.

3. Processing by the EPPO for any of the purposes set out in Article 49 other than that for which the operational personal data are collected shall be permitted in so far as:

(a)

the EPPO is authorised to process such operational personal data for such a purpose in accordance with this Regulation; and

(b)

processing is necessary and proportionate to that other purpose in accordance with Union law; and

(c)

where relevant, the use of operational personal data is not prohibited by the applicable national procedural law on the investigative measures taken in accordance with Article 30. The applicable national procedural law is the law of the Member State where the data was obtained.

Article 48

Administrative personal data

1. Regulation (EC) No 45/2001 applies to all administrative personal data processed by the EPPO.

2. The EPPO shall determine the time limits for the storage of administrative personal data in the data protection provisions of its internal rules of procedure.

Processing of operational personal data

1. The EPPO shall process operational personal data by automated means or in structured manual files in accordance with this Regulation, and only for the following purposes:

(a)

criminal investigations and prosecutions undertaken in accordance with this Regulation; or

(b)

information exchange with the competent authorities of Member States of the European Union and other institutions, bodies, offices and agencies of the Union in accordance with this Regulation; or

(c)

cooperation with third countries and international organisations in accordance with this Regulation.

2. Categories of operational personal data, and the categories of data subjects whose operational personal data may be processed in the index as referred to in point (b) of Article 44(4) by the EPPO for each purpose referred to in paragraph 1 of this Article shall be listed in an Annex in accordance with paragraph 3.

3. The Commission shall be empowered to adopt delegated acts in accordance with Article 115 to list the categories of operational personal data and the categories of data subjects referred to in paragraph 2 of this Article and to update such a list in order to take account of developments in information technology and in the light of the state of progress in the information society.

Where imperative grounds of urgency so require, the procedure provided for in Article 116 shall apply to delegated acts adopted pursuant to this paragraph.

4. The EPPO may temporarily process operational personal data for the purpose of determining whether such data are relevant to its tasks and for the purposes referred to in paragraph 1. The College, acting on a proposal from the European Chief Prosecutor and after consulting the European Data Protection Supervisor, shall further specify the conditions relating to the processing of such operational personal data, in particular with respect to access to and the use of the data, as well as time limits for the storage and deletion of the data.

5. The EPPO shall process operational personal data in such a way that it can be established which authority provided the data or where the data has been retrieved from.

6. When applying Articles 57 to 62, the EPPO shall, where relevant, act in compliance with national procedural law on the obligation to provide information to the data subject and the possibilities to omit, restrict or delay such information. Where appropriate, the handling European Delegated Prosecutor shall consult other European Delegated Prosecutors concerned by the case before taking a decision in respect of Articles 57 to 62.

Article 50

Time limits for the storage of operational personal data

1. The EPPO shall review periodically the need for the storage of the operational personal data processed. At the latest, such a review shall be carried out not later than 3 years after the operational personal data were first processed and then every 3 years. If operational personal data are stored for a period exceeding 5 years, the European Data Protection Supervisor shall be informed of that fact.

2. Operational personal data processed by the EPPO shall not be stored beyond 5 years after an acquitting decision in respect of the case has become final; in case the accused was found guilty the time limits shall be extended until the penalty that has been imposed, is enforced or can no longer be enforced under the law of the sentencing Member State.

3. Before one of the deadlines referred to in paragraph 2 expires, the EPPO shall review the need for the continued storage of the operational personal data where and as long this is necessary to perform its tasks. The reasons for the continued storage shall be justified and recorded. If no decision is taken on the continued storage of operational personal data, those data shall be deleted automatically.

Distinction between different categories of data subject

The EPPO shall, where applicable and as far as possible, make a clear distinction between operational personal data of different categories of data subjects, such as:

(a)

persons with regard to whom there are serious grounds for believing that they have committed or are about to commit a criminal offence;

(b)

persons convicted of a criminal offence;

(c)

victims of a criminal offence or persons with regard to whom certain facts give rise to reasons for believing that they could be the victim of a criminal offence; and

(d)

other parties to a criminal offence, such as persons who might be called upon to testify in investigations in connection with criminal offences or subsequent criminal proceedings, persons who can provide information on criminal offences, or contacts or associates of one of the persons referred to in points (a) and (b).

Article 52

Distinction between operational personal data and verification of quality of personal data

1. The EPPO shall distinguish, as far as possible, operational personal data based on facts from operational personal data based on personal assessments.

2. The EPPO shall take all reasonable steps to ensure that operational personal data which are inaccurate, incomplete or no longer up to date are not transmitted or made available. To that end, the EPPO shall, as far as practicable, verify the quality of operational personal data before they are transmitted or made available. As far as possible, in all transmissions of operational personal data, the EPPO shall add necessary information enabling the recipient to assess the degree of accuracy, completeness and reliability of operational personal data, and the extent to which they are up to date.

3. If it emerges that incorrect operational personal data have been transmitted or operational personal data have been unlawfully transmitted, the recipient shall be notified without delay. In such a case, the operational personal data shall be rectified or erased or processing shall be restricted in accordance with Article 61.

Article 53

Specific processing conditions

1. When required by this Regulation, the EPPO shall provide for specific conditions for processing and shall inform the recipient of such operational personal data of those conditions and the requirement to comply with them.

2. The EPPO shall comply with specific processing conditions for processing provided by a national authority in accordance with Article 9(3) and (4) of Directive (EU) 2016/680.

Article 54

Transmission of operational personal data to institutions, bodies, offices and agencies of the Union

1. Subject to any further restrictions pursuant to this Regulation, in particular Article 53, the EPPO shall only transmit operational personal data to another institution, body, office or agency of the Union if the data are necessary for the legitimate performance of tasks covered by the competence of the other institution, body, office or agency of the Union.

2. Where the operational personal data are transmitted following a request from the other institution, body, office or agency of the Union, both the controller and the recipient shall bear the responsibility for the legitimacy of this transfer.

The EPPO shall be required to verify the competence of the other institution, body, office or agency of the Union and to make a provisional evaluation of the necessity for the transmission of the operational personal data. If doubts arise as to this necessity, the EPPO shall seek further information from the recipient.

The other institution, body, office or agency of the Union shall ensure that the necessity for the transmission of the operational personal data can be subsequently verified.

3. The other institution, body, office or agency of the Union shall process the operational personal data only for the purposes for which they were transmitted.

Article 55

Processing of special categories of operational personal data

1. Processing of operational personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, operational personal data concerning health or operational personal data concerning a natural person’s sex life or sexual orientation shall be allowed only where strictly necessary for the EPPO’s investigations, subject to appropriate safeguards for the rights and freedoms of the data subject and only if they supplement other operational personal data already processed by the EPPO.

2. The Data Protection Officer shall be informed immediately of recourse to this Article.

Article 56

Automated individual decision-making, including profiling

The data subject shall have the right not to be subject to a decision of the EPPO based solely on automated processing, including profiling, which produces legal effects concerning him/her or similarly significantly affects him/her.

Article 57

Communication and modalities for exercising the rights of the data subject

1. The EPPO shall take reasonable steps to provide any information referred to in Article 58. It shall make any communication with regard to Articles 56, 59 to 62 and 75 relating to processing to the data subject in a concise, intelligible and easily accessible form, using clear and plain language. The information shall be provided by any appropriate means, including by electronical means. As a general rule, the controller shall provide the information in the same form as the request.

2. The EPPO shall facilitate the exercise of the rights of the data subject under Articles 58 to 62.

3. The EPPO shall inform the data subject in writing about the follow up to his/her request without undue delay, and in any case at the latest after 3 months after receipt of the request by the data subject.

4. The EPPO shall provide for the information provided under Article 58 and any communication made or action taken pursuant to Articles 56, 59 to 62 and 75 to be provided free of charge. Where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, the EPPO may either:

(a)

charge a reasonable fee, taking into account the administrative costs of providing the information or communication, or taking the action requested; or

(b)

refuse to act on the request.

The EPPO shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.

5. Where the EPPO has reasonable doubts concerning the identity of the natural person making a request referred to in Article 59 or 61, the EPPO may request the provision of additional information necessary to confirm the identity of the data subject.

Article 58

Information to be made available or given to the data subject

1. The EPPO shall make available to the data subject at least the following information:

(a)

the identity and the contact details of the EPPO;

(b)

the contact details of the data protection officer;

(c)

the purposes of the processing for which the operational personal data are intended;

(d)

the right to lodge a complaint with the European Data Protection Supervisor and its contact details;

(e)

the existence of the right to request from the EPPO access to and rectification or erasure of operational personal data and restriction of processing of the operational personal data concerning the data subject.

2. In addition to the information referred to in paragraph 1, the EPPO shall give to the data subject, in specific cases, the following further information to enable the exercise of his/her rights:

(a)

the legal basis for the processing;

(b)

the period for which the operational personal data will be stored, or, where that is not possible, the criteria used to determine that period;

(c)

where applicable, the categories of recipients of the operational personal data, including in third countries or international organisations;

(d)

where necessary, further information, in particular where the operational personal data are collected without the knowledge of the data subject.

3. The EPPO may delay, restrict or omit the provision of the information to the data subject pursuant to paragraph 2 to the extent that, and for as long as, such a measure constitutes a necessary and proportionate measure in a democratic society with due regard for the fundamental rights and the legitimate interests of the natural person concerned, in order to:

(a)

avoid obstructing official or legal inquiries, investigations or procedures;

(b)

avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties;

(c)

protect public security of the Member States of the European Union;

(d)

protect national security of the Member States of the European Union;

(e)

protect the rights and freedoms of others.

Article 59

Right of access by the data subject

The data subject shall have the right to obtain from the EPPO confirmation as to whether or not operational personal data concerning him/her are being processed, and, where that is the case, access to the operational personal data and the following information:

(a)

the purposes of and legal basis for the processing;

(b)

the categories of operational personal data concerned;

(c)

the recipients or categories of recipients to whom the operational personal data have been disclosed, in particular recipients in third countries or international organisations;

(d)

where possible, the envisaged period for which the operational personal data will be stored, or, if not possible, the criteria used to determine that period;

(e)

the existence of the right to request from the EPPO rectification or erasure of operational personal data or restriction of processing of operational personal data concerning the data subject;

(f)

the right to lodge a complaint with the European Data Protection Supervisor and the contact details of the European Data Protection Supervisor;

(g)

the communication of the operational personal data undergoing processing and of any available information as to their origin.

Article 60

Limitations to the right of access

1. The EPPO may restrict, wholly or partly, the data subject’s right of access to the extent that, and for as long as, such a partial or complete restriction constitutes a necessary and proportionate measure in a democratic society with due regard for the fundamental rights and legitimate interests of the natural person concerned, in order to:

(a)

avoid obstructing official or legal inquiries, investigations or procedures;

(b)

avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties;

(c)

protect public security of the Member States of the European Union;

(d)

protect national security of the Member States of the European Union;

(e)

protect the rights and freedoms of others.

2. Where the provision of such information would undermine the purpose of paragraph 1, the EPPO shall only notify the data subject concerned that it has carried out the checks, without giving any information which might reveal to him/her whether or not operational personal data concerning him/her are processed by the EPPO.

The EPPO shall inform the data subject of the possibility of lodging a complaint with the European Data Protection Supervisor or seeking a judicial remedy in the Court of Justice against the EPPO’s decision.

3. The EPPO shall document the factual or legal reasons on which the decision is based. That information shall be made available to the European Data Protection Supervisor on request.

Right to rectification or erasure of operational personal data and restriction of processing

1. The data subject shall have the right to obtain from the EPPO without undue delay the rectification of inaccurate operational personal data relating to him/her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete operational personal data completed, including by means of providing a supplementary statement.

2. The EPPO shall erase operational personal data without undue delay and the data subject shall have the right to obtain from the EPPO the erasure of operational personal data concerning him/her without undue delay where processing infringes Article 47, 49 or 55, or where operational personal data must be erased in order to comply with a legal obligation to which the EPPO is subject.

3. Instead of erasure, the EPPO shall restrict processing where:

(a)

the accuracy of the operational personal data is contested by the data subject and their accuracy or inaccuracy cannot be ascertained; or

(b)

the operational personal data must be maintained for the purposes of evidence.

Where processing is restricted pursuant to point (a) of the first subparagraph, the EPPO shall inform the data subject before lifting the restriction of processing.

4. Where processing has been restricted under paragraph 3, such operational personal data shall, with the exception of storage, only be processed for the protection of the rights of the data subject or another natural or legal person who is a party of the proceedings of the EPPO, or for the purposes laid down in point (b) of paragraph 3.

5. The EPPO shall inform the data subject in writing of any refusal of rectification or erasure of operational personal data or restriction of processing and of the reasons for the refusal. The EPPO may restrict, wholly or partly, the obligation to provide such information to the extent that such a restriction constitutes a necessary and proportionate measure in a democratic society with due regard for the fundamental rights and legitimate interests of the natural person concerned in order to:

(a)

avoid obstructing official or legal inquiries, investigations or procedures;

(b)

avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties;

(c)

protect public security of the Member States of the European Union;

(d)

protect national security of the Member States of the European Union;

(e)

protect the rights and freedoms of others.

The EPPO shall inform the data subject of the possibility of lodging a complaint with the European Data Protection Supervisor or of seeking a judicial remedy from the Court of Justice against the EPPO’s decision.

6. The EPPO shall communicate the rectification of inaccurate operational personal data to the competent authority from which the inaccurate operational personal data originate.

7. The EPPO shall, where operational personal data has been rectified or erased or processing has been restricted pursuant to paragraphs 1, 2 and 3, notify the recipients and inform them that they have to rectify or erase the operational personal data or restrict processing of the operational personal data under their responsibility.

Article 62

Exercise of rights by the data subject and verification by the European Data Protection Supervisor

1. In the cases referred to in Articles 58(3), 60(2) and 61(5), the rights of the data subject may also be exercised through the European Data Protection Supervisor.

2. The EPPO shall inform the data subject of the possibility of exercising his/her rights through the European Data Protection Supervisor pursuant to paragraph 1.

3. Where the right referred to in paragraph 1 is exercised, the European Data Protection Supervisor shall inform the data subject at least that all necessary verifications or a review by it have taken place. The European Data Protection Supervisor shall also inform the data subject of his/her right to seek a judicial remedy in the Court of Justice against the European Data Protection Supervisor’s decision.

Obligations of the EPPO

1. Taking into account the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, the EPPO shall implement appropriate technical and organisational measures to ensure, and to be able to demonstrate that processing is performed in accordance with this Regulation. Those measures shall be reviewed and updated where necessary.

2. Where proportionate in relation to processing activities, the measures referred to in paragraph 1 shall include the implementation of appropriate data protection policies by the EPPO.

Article 64

Joint controllers

1. Where the EPPO together with one or more controllers jointly determine the purposes and means of processing, they shall be joint controllers. They shall, in a transparent manner, determine their respective responsibilities for compliance with their data protection obligations, in particular as regards the exercising of the rights of the data subject and their respective duties to provide the information, by means of an arrangement between them unless, and in so far as, the respective responsibilities of the controllers are determined by Union law or the law of a Member State of the European Union to which the controllers are subject. The arrangement may designate a contact point for data subjects.

2. The arrangement referred to in paragraph 1 shall duly reflect the respective roles and relationships of the joint controllers vis-à-vis the data subjects. The essence of the arrangement shall be made available to the data subject.

3. Irrespective of the terms of the arrangement referred to in paragraph 1, the data subject may exercise his/her rights under this Regulation in respect, and against each, of the controllers.

Article 65

Processor

1. Where processing is to be carried out on behalf of the EPPO, the EPPO shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject.

2. The processor shall not engage another processor without prior specific or general written authorisation of the EPPO. In the case of general written authorisation, the processor shall inform the EPPO of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes.

3. Processing by a processor shall be governed by a contract or other legal act under Union law, or the law of a Member State of the European Union, that is binding on the processor with regard to the EPPO and that sets out the subject matter and duration of the processing, the nature and purpose of the processing, the type of operational personal data and categories of data subjects and the obligations and rights of the EPPO. That contract or other legal act shall stipulate, in particular, that the processor:

(a)

acts only on instructions from the controller;

(b)

ensures that persons authorised to process the operational personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;