Tag Archives: enhanced cooperation

Not on Viktor Orbán’s Christmas list: A European Public Prosecutor

The establishment of a European Public Prosecutor’s Office (EPPO) has been on the table since at least 2013. In the last three years, despite intensive negotiations, progress has been slow because of the resistance of some of the member states, among them Hungary. As it stands, in order to create EPPO 25 member states have to support the proposal because the United Kingdom, Ireland, and Denmark have opted out. According to reports, 20 member states support the plan while Poland, Hungary, Sweden, and the Netherlands oppose it. The reluctance to cede certain national rights to the European Union is understandable from the point of view of nation states, but we can be sure that Hungary’s unwillingness has other sources as well.

EPPO will have the authority “to investigate and prosecute EU-fraud and other crimes affecting the Union’s financial interests.” Currently, only national authorities can investigate and prosecute EU-fraud. The existing EU bodies, such as OLAF, Eurojust, and Europol, don’t have jurisdiction here. OLAF can investigate, but the prosecution must be carried out by the authorities of the member states. As we know, in the case of Hungary OLAF finds plenty to investigate, but the Hungarian authorities never find anything wrong. Europol has no executive powers, and its officials are not entitled to conduct investigations in the member states or to arrest suspects. Eurojust, an organization I have not mentioned before, is merely a coordinating body which is supposed to improve the handling of serious cross-border crimes by “stimulating” investigative and prosecutorial coordination among agencies of the member states. This is another body that has no power over the justice system in the member states. Eurojust could “stimulate” Péter Polt’s prosecutor’s office till doomsday and it would never investigate crimes committed by Fidesz officials.

From the description of EPPO’s structure on the website of the European Union I have some difficulty envisaging how this independent prosecutorial body will function. Under a European prosecutor, investigations will be carried out by European delegated prosecutors located in each member state. These delegated prosecutors will be an integral part of the EPPO, but they will also function as national prosecutors. I must say that I have my doubts about this setup, which Viktor Orbán’s regime could easily manipulate. But it will probably never come to pass because, among the Central European EU members, Hungary and Poland have no intention of going along with the plan which, according to Věra Jourová, commissioner in charge of justice, consumers and gender equality, should be voted on within three months.

The head of OLAF, Giovanni Kessler, naturally supports the plan because the number of cases his organization has to investigate increases every year. In 2015 OLAF opened 219 investigations and concluded 304. Hungary alone had 17 possible fraud cases, the third highest after Bulgaria and Romania. But OLAF can only make recommendations to the member states, which at least in Hungary’s case are not pursued. Interestingly, several chief prosecutors in member states support the idea of the setting up a European Prosecutor’s Office, among them the prosecutors of Belgium, Bulgaria, Greece, Spain, France, and Romania. As we know, in Romania corruption is just as bad if not worse than in Hungary, yet there is a willingness to allow an independent body to investigate cases of fraud and corruption.

Last July the Hungarian media reported that the negotiations were in an advanced stage since Jourová called together the ministers of justice for an informal talk in Bratislava. At that point HVG reported that “Hungary supports the goals of the organization but is afraid that the sovereignty of the Hungarian prosecution may be undermined.” The explanation Justice Minister László Trócsányi gave for Hungary’s hesitation concerning EPPO was that in the Hungarian judicial system the chief prosecutor is appointed by the parliament and therefore the sovereignty issue might be a constitutional problem. By December, after Jourová’s visit to Budapest, this hesitation became a flat refusal. In addition to the argument about the parliamentary appointment of the chief prosecutor, a new argument surfaced in parliament, which had its source in Trócsányi’s proposed additions to the Fidesz constitution about Hungary’s “national identity and basic constitutional arrangements.”

Practically on the same day that the parliamentary committee said no to the proposal “in its present form,” Věra Jourová told Handelsblatt Global that “the European Commission could impose financial penalties on Poland and Hungary if they block the creation of a European public prosecutor.” Poland and Hungary receive more aid from the European Union than they pay into the budget, and therefore their refusal is unacceptable. She disclosed that on the basis of the known cases, €638 million of structural funds were misappropriated in 2015. The actual figure is most likely much higher. This must be stopped, she added.

Věra Jourová, commissioner in charge of justice. Despite her pleasant smile she’s apparently tough.

On December 8 EU justice ministers gathered again in Brussels to discuss the creation of EPPO, but while the majority of them support the plan, a few member states refuse to budge. To quote euractiv.com, “with no end in sight to this blockage, France’s Minister of Justice Jean-Jacques Urvoas and his German counterpart Heiko Maas decided to propose an enhanced cooperation deal for those countries that are in favor of this ‘super prosecutor.’” Enhanced cooperation is a mechanism that allows EU countries to bypass the requirement of unanimity. A group of at least nine member states may request a draft regulation. If this draft fails, the states concerned are free to establish enhanced cooperation among themselves. I fail to see how that would be disadvantageous to rogue states like Poland or Hungary. Orbán would gladly acknowledge the fact that EPPO has no jurisdiction over Hungary, and he and his friends could continue to steal about a third of the structural funds EU provides. A perfect arrangement.

Now let’s turn to how the opposition parties see the issue. As far as Jobbik is concerned, the establishment of a European Public Prosecutor’s Office is the first step to the dreaded United States of Europe. In fact, Jobbik accuses Fidesz and the Orbán government of not fighting hard enough in Brussels against this proposal. Jobbik must consider the issue very important because they published a statement in English in which Gábor Staudt, a Jobbik MP, explains the party’s position. He recalls the Fidesz members of the European Parliament not having the guts to vote against the proposal; they only abstained. Jobbik’s opposition is based strictly on its nationalistic defense of Hungarian sovereignty whereas Fidesz worries primarily about the legal consequences of an independent European prosecutor’s office investigating crimes of government officials.

The democratic Hungarian opposition parties are all enthusiastic supporters of a European Public Prosecutor’s Office. DK was actually campaigning with the idea ahead of the 2014 European parliamentary election. Benedek Jávor, a member of the European parliament delegated by PM (nowadays Párbeszéd), joined DK’s demand soon after. István Ujhelyi (MSZP), also a member of the European parliament, is of the same mind. He wrote a lengthy piece, published on the party’s website, about the necessity of such a body in the absence of a functioning Hungarian prosecutor’s office. Ujhelyi is sure that if EPPO is set up “the Fidesz hussars will be behind bars in crowded rows, including those corrupt officials who assist them.” He criticizes Fidesz members of the European Parliament for abandoning the position of the European People’s Party to which they belong. They “almost alone abstained” at the time the matter was discussed in Strasbourg.

Ujhelyi somewhat optimistically points out that if Hungary remains outside the group of countries that are ready to be under the jurisdiction of the European Public Prosecutor, the distinction between honest and dishonest countries will be evident. In case Fidesz refuses to support the decision, “it will be an admission that it is a party of thieves.” I’m afraid Viktor Orbán and his government simply don’t care what others think of them. At the moment Viktor Orbán is in Poland on a two-day visit. I understand that he and Jarosław Kaczyński had a leisurely three-hour dinner. I’m sure that the threat of a European Public Prosecutor to the sovereignty of Poland and Hungary was thoroughly discussed.

December 11, 2016