Communication from the Commission to the European Parliament, the Council and the National Parliaments on the review of the proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office with regard to the principle of subsidiarity, in accordance with Protocol No 2

On 17 July 2013, the Commission adopted a proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office. The Commission's proposal is based on Article 86 of the Treaty on the Functioning of the European Union (TFEU), which empowers the Council to establish that Office in order to combat crimes affecting the financial interests of the Union.

Article 86(1) TFEU provides for a special legislative procedure requiring unanimity in the Council and the consent of the European Parliament. The Treaty also foresees a specific procedure according to which the proposal can be adopted through enhanced cooperation in the absence of unanimity in the Council. The Treaty requires for this procedure the participation of at least nine Member States and an absence of consensus in the European Council. In such a case the authorisation to proceed with enhanced cooperation shall be deemed to be granted without the need of a formal act of the Council.

The Commission's commitment to fighting fraud and enhancing the protection of taxpayers' money has been constant over the years, but results in the area of criminal prosecution remain disappointing. In view of the fact that the Union budget is chiefly administered at national level, common European solutions are necessary to make the fight against fraud more effective across the Union. In this context, President Barroso announced in September 2012 the "intention to establish a European Public Prosecutor's Office, as foreseen by the Treaties". The proposal is part of a package of measures aimed at better protecting the Union's financial interests. This objective has great importance in the current economic and fiscal context. The damage caused by fraud and other offences affecting the Union’s budget is significant, as confirmed over the years by the Union's annual statistics. Those offences have a very negative effect on the public and private sectors, generating important economic and social costs.

In accordance with Protocol No 2 to the Treaties on the application of the principles of subsidiarity and proportionality, from the date of transmission of a draft legislative act national Parliaments have eight weeks to consider whether it is compatible or not with the principle of subsidiarity. As regards legislative proposals submitted on the basis of Article 76 TFEU, the threshold provided for in Article 7(2) of Protocol No 2 is one quarter of the votes allocated to national Parliaments (as opposed to the normal threshold of one third of the votes). Where reasoned opinions issued by national Parliaments for non-compliance with the principle of subsidiarity reach that threshold, the proposal has to be reviewed by the Commission. On the basis of that review, the Commission decides whether to maintain, amend or withdraw the proposal, and it must give reasons for its decision.

Within the deadline laid down in Article 6 of Protocol No 2, fourteen chambers of national Parliaments had sent reasoned opinions to the Commission, thus triggering the subsidiarity control mechanism provided for in Article 7(2) of Protocol No 2. The threshold of Article 7(3) of Protocol No 2 has not been reached. In addition, it is to be noted that at the date of adoption of this Communication, four national Parliaments (RO Senat, DE Bundesrat, PL Senat and PT Assembleia da República) sent opinions in the framework of the political dialogue which did not consider the proposal to be incompatible with the principle of subsidiarity.

EUR-Lex: COM(2013)851: Follow the progress of this communication through the decision-making procedure http://eur-lex.europa.eu/legal-content/EN/HIS/?uri=COM:2013:851:FIN

ESO: Background information: Member states 'endorse' EU-wide public prosecutor http://www.europeansources.info/record/member-states-endorse-eu-wide-public-prosecutor/

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