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Establishing the European Public Prosecutor’s Office: from core state powers to supranational criminal justice?

par Schmeer, Laura
Président du jury Brack, Nathalie
Promoteur Coman, Ramona
Co-Promoteur Weyembergh, Anne
Publication Non publié, 2024-01-18

Thèse de doctorat

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Résumé :

The European Public Prosecutor’s Office (EPPO) is a judicial body of the European Union (EU), created in 2017 to investigate and prosecute crimes against the EU financial interests. The aim of this thesis is to explain how and why national and supranational institutional actors, through the establishment of the EPPO, come to construct supranational criminal justice. By establishing the EPPO, the 22 participating member states of the EU transferred key sovereign powers – pertaining to criminal justice – to a supranational body. Criminal justice is closely linked to the monopoly on the legitimate use of force and the definition and protection of essential societal values. This is why states generally want to maintain their authority over this policy field. Accordingly, common EU action in this field has mostly relied on cooperation, coordination, and mutual recognition, essentially keeping national judicial systems intact and limiting their submission to supranational authority. The EPPO, with its binding and far-reaching enforcement powers, presents a clear departure from this pattern.To understand the drivers of this transfer of sovereign powers and how the various institutional actors in the EU arena are shaping supranational criminal justice in that respect, we must find out how key actors themselves understand (their) sovereignty in relation to European integration. I, therefore, adopt an ideational approach to this question to examine how ideas and discourse – rather than functionalist pressures, national interests, or international norms – have resulted in the creation of the EPPO and shaped its modalities. Concretely, I adopt a discursive institutionalist approach to show how discourse influences institution-building.Through this theoretical lens, I uncover the various ideas held on the protection of the EU financial interests and how they are articulated with ideas on national sovereignty and European integration in that context. I operationalise the coordinative discourse on the EPPO’s establishment through the main institutional arenas of EU decision-making – the supranational arena embodied by the European Commission, the intergovernmental arena embodied by national governments in the Council of the EU and the European Council, and the parliamentary arena embodied by the European Parliament and national parliaments of EU member states – to show how various actors associated with those institutional arenas communicated their discourses to make others adopt their ideas. I argue that the EPPO resulted from the exercise of ideational power and a process of accommodating conflicting norms and interests.This thesis provides an explanation of the creation of the EPPO, including the role that the main institutional actors have played in that process through the transformative power of their discourses. To do so, I combine a qualitative discourse analysis – uncovering the substance of the ideas held by the different actors – with a process-tracing methodology, revealing the causal mechanism that links the ideas and discourses of different causal actors to the observed outcome, that is, the establishment of the EPPO. This analysis relies on a rich corpus of data, composed of policy documents related to the decision-making process on the EPPO’s creation and original in-depth elite interviews with decision-makers involved in that process.The thesis first demonstrates that the European Commission acted as a key discursive entrepreneur by pinpointing the problem of the deficient protection of the EU financial interests against crime and promoting the EPPO as an adequate institutional solution. The Commission’s discourse combined an elaborate problem definition presenting the expected added value of the EPPO for addressing the shortcomings of the previous, purely member state-based protection of the EU budget with a normative argument on the EU’s legitimacy to protect its own interests and the symbolic value of an EU prosecutorial body for the European integration project. Through persistent communication on the topic over many years, successive key Commission officials – emanating first from the budgetary and financial control sector, later from the justice and home affairs sector – gradually convinced a critical mass of national governments of the desirability of the EPPO.I retrace the emergence of this support for the EPPO among member state governments, which depended not only on the Commission’s persuasive efforts but also on how governments perceived the EU financial interests and their national sovereignty in relation to European integration. It is shown that the flexible and multilayered understanding of national sovereignty held by many governments allowed for the transfer of sovereign powers to the EPPO, which was not per se perceived as irreconcilable with national sovereignty but required certain concessions with regard to the body’s exact competence and design. In a difficult process of accommodating the conflicting views of the more supranationally-oriented governments with those of the more intergovernmentally-oriented governments, the Council of the EU produced a highly complicated and, to some extent, ambiguous founding Regulation for the EPPO.The thesis also demonstrates that the European Parliament was an important ally of the Commission in creating awareness for the insufficient protection of the EU budget and promoting the EPPO. However, during the negotiations of the EPPO’s founding Regulation, the European Parliament only played a marginal role, mostly due to the special legislative procedure, which only allowed the European Parliament to accept or reject the text negotiated within the Council of the EU, but also because of a certain lack of interest in the file. But more recently, the European Parliament has renewed its interest in the EPPO by advocating for an adequate budget allocation to the body and using its role in the nomination procedures of the EPPO’s members to ensure its independence from member states.The national parliaments of EU member states also played a marginal role in the EPPO’s creation. A significant number of national parliamentary chambers voiced their concerns with regard to the EPPO through the subsidiarity control mechanism, triggering a so-called yellow card against the Commission’s legislative proposal. This did not have any formal impact on the adoption procedure, as the Commission maintained its proposal without changes. But the strong signal sent by national parliaments likely contributed informally to a shift in the negotiations away from the highly supranational body proposed by the Commission towards a more intergovernmental EPPO. Moreover, the analysis shows that individual national parliaments influenced the negotiations indirectly via their national governments, either by imposing their preferences on them or by contributing further arguments, which governments could use in the EU arena to enhance their positions.Finally, the thesis broadens the analytical scope beyond the EPPO’s adoption procedure to address key developments of the body’s concrete set-up and the start of its operations. This demonstrates that certain decisions and conflicts pertaining to the negotiating phase have an impact on the body’s implementation and its operations, notably as regards its independence from national judicial systems and the cooperation with participating and non-participating member states.The findings are relevant for political scientists and legal scholars interested in the EU justice and home affairs domain by providing the first in-depth analysis of the political and institutional dynamics underlying the creation of one of the most significant actors in the domain to date. The findings also contribute to our understanding of the concept of national sovereignty by showing the benefits of examining rather than assuming actors’ perceptions of it, revealing the contested nature of the notion, often understood as a flexible and multilayered concept, and showing the links between sovereignty and institutional choice in the EU context. Finally, the findings deepen our understanding of inter-institutional relations and decision-making in the EU by adding a perspective on less visible power dynamics linked to the role of ideas and discourse to more traditional (coercive and/or institutional-structural) forms of influence.