1939 - Main contents

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dossier	COM(2024)215 - Amendment of Decision (EU) 2023/133 appointing the members of the selection panel provided for in Article 14(3) of ...
source	COM(2024)215
date	27-05-2024

1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

Council Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘EPPO’) was adopted on 12 October 2017 and entered into force on 20 November 2017 ¹ . The EPPO assumed the investigative and prosecutorial tasks conferred on it by such Regulation on 1 June 2021. The EPPO is responsible for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices to, criminal offences affecting the Union’s financial interests which are provided for in Directive (EU) 2017/1371 ² , as implemented into national law, and determined by Regulation (EU) 2017/1939.

In accordance with Article 8 of Regulation (EU) 2017/1939, the EPPO is organised at a central and at a decentralised level. The European Chief Prosecutor and the European Prosecutors – one per Member State participating in the enhanced cooperation on the establishment of the EPPO – are part of the central level of the EPPO and form the College of the EPPO. The European Parliament and the Council appointed by common accord the first European Chief Prosecutor in October 2019 ³ . The Council appointed the first 22 European Prosecutors of the EPPO in July 2020.

The mandate of the European Chief Prosecutor is of seven years and is not renewable (Article 14(1) of Regulation (EU) 2017/1939). The mandate of the European Prosecutors is of six years and the Council may decide to extend it for a maximum of three years (Article 16 i of Regulation (EU) 2017/1939). Article 16 i of Regulation (EU) 2017/1939 provides that every three years there should be a partial replacement of one third of the European Prosecutors and requires the Council to adopt transitional rules for the appointment of the European Prosecutors for and during the first mandate period. On this basis, the Council adopted Council Implementing Decision (EU) 2019/598 of 9 April 2019, which provides that the mandate of the European Prosecutors from eight Member States, determined by drawing lots, should be of three years and should not be renewable. The mandate of these European Prosecutors thus expired in July 2023.

Article 14 i of Regulation (EU) 2017/1939 provides that the selection of the European Chief Prosecutor should be based on an open call for candidates, to be published in the Official Journal of the European Union, following which a selection panel should draw up a shortlist of qualified candidates to be submitted to the European Parliament and to the Council. Article 16(2) of Regulation (EU) 2017/1939 provides that the Council should select and appoint one of the candidates nominated by the Member States for the post of European Prosecutors after having received the reasoned opinion of the selection panel referred to in Article 14 i of the same Regulation.

In accordance with the latter provision, the selection panel should comprise 12 persons, to be appointed by the Council on a proposal from the Commission, 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 should be proposed by the European Parliament.

The 12 members of the first selection panel were appointed by the Council, on a proposal from the Commission, in October 2018 ⁴ , while the 12 members of the current selection panel were appointed in January 2023 for a period of four years from 20 January 2023 ⁵ . Mr Marin Mrčela, Justice of the Supreme Court of the Republic of Croatia, was one of the members of the selection panel appointed in January 2023. On 8 April 2024, Mr Mrčela informed the European Commission that he could no longer serve as member of the selection panel and therefore decided to resign. The Council was informed accordingly.

To ensure the continuity of the selection panel, Mr Mrčela should be replaced. In accordance with the operating rules of the selection panel ⁶ , his replacement should be appointed for the remainder of Mr Mrčela’s term of office (i.e., until 20 January 2027). With the present proposal, the Commission therefore proposes the Council to appoint Mr Dražen Jelenić, Deputy State Attorney General of the Republic of Croatia, as member of the selection panel in replacement of Mr Mrčela. Mr Dražen Jelenić meets the requirements set out in Article 14 i of Regulation (EU) 2017/1939. In proposing his appointment, the Commission took into account the need to ensure balance in terms of geographical distribution, gender, and knowledge of legal systems of the Member States participating in the EPPO.

• Consistency with existing policy provisions in the policy area

The EPPO was established by means of Regulation (EU) 2017/1939, which was adopted on the basis of Article 86 TFEU. The EPPO has been exercising the functions attributed to it by Regulation (EU) 2017/1939 since 1 June 2021. By submitting this proposal for a Council Decision on the replacement of one of the current members of the selection panel, the Commission is complying with its obligation under Article 14 i of Regulation (EU) 2017/1939. This proposal allows for the replacement of one member of the current selection panel, whose mandate is due to expire on 20 January 2027. The full functioning of the selection panel is important to allow for the orderly finalisation of the procedures to select and appoint the European Prosecutor from Poland ⁷ as well as the European Prosecutors who will have to be replaced in 2026 and the new European Chief Prosecutor, who will also have to be appointed in 2026.

• Consistency with other Union policies

This proposal is consistent with other Union policies aimed at strengthening the protection of the Union’s financial interests.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The proposal is based on Article 14 i of Regulation (EU) 2017/1939.

• Subsidiarity (for non-exclusive competence)

The appointment of members of the selection panel provided for in Article 14 i of Regulation (EU) 2017/1939 can only be decided by the Council, on the basis of a Commission proposal, and is thus an exclusive competence by nature, which is not subject to the principle of subsidiarity.

• Proportionality

This proposal is limited to what is necessary in order to attain the proposed objectives and is therefore compliant with the principle of proportionality. This proposal is essential in ensuring that the European Chief Prosecutor and the European Prosecutors can be replaced at the end of their mandate, and that the European Prosecutors from the Member States that have recently joined or will soon join the enhanced cooperation on the EPPO are appointed, thus ensuring full deployment and continuity of the operational activities of the EPPO.

• Choice of the instrument

Article 14 i of Regulation (EU) 2017/1939 provides that the Council is to adopt a decision appointing the members of the selection panel on a proposal from the Commission. Rule II of the operating rules of the selection panel further provides that a person who is to replace a member of the selection panel should be appointed for the remainder of the predecessor’s term of office following the same procedure. The choice of the proposed instrument is therefore required by the existing legislation on the matter.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

Given the technical nature of this proposal and the absence of discretion on the Commission, which is complying with the obligation set out in Article 14 i of Regulation (EU) 2017/1939, ex-post evaluations, stakeholder consultations and impact assessments were not carried out.

4. BUDGETARY IMPLICATIONS

This proposal has no budgetary implications.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

Given the nature of this measure, there is no need for implementation plans and monitoring nor for evaluation and reporting arrangements.

• Detailed explanation of the specific provisions of the proposal

Article 1 provides that the Mr Dražen Jelenić replaces Mr Marin MRČELA as member of the selection panel provided for in Article 14 i of Regulation (EU) 2017/1939.

Article 2 provides for the entry into force of the Decision.