Open letter to the European Parliament: Call out the EU Council on its rule of law hypocrisy ǀ View

A few weeks ago, the European Council appointed the European prosecutors who will be part of the European Public Prosecution Office (EPPO). Some might remember the controversy surrounding the appointment of its Chief Prosecutor last year. The Council appointed an independent panel to evaluate the candidates but, under pressure from the Romanian government, initially planned on choosing a different candidate other than Romanian prosecutor Laura Codruța Kövesi who was preferred as its first choice. Ultimately, the European Parliament shielded the procedure from national interference and the independent panel prevailed in their choice.

The Council has now done the opposite with respect to the selection of the European Prosecutors who will work under the guidance of the Chief Prosecutor. With respect to the candidates of three member states Belgium, Bulgaria, and Portugal, the Council has decided to choose a candidate other than the one recommended by the independent panel, all without providing any reasons as to why it has done so and without its deliberation being made public. This strikes a blow at the credibility of the independence of the EPPO and the rule of law in the European Union.

The Council Regulation which set up the EPPO put in place a set of institutional guarantees aimed at safeguarding its independence. These include an impartial and independent selection process for the European prosecutors, guided by criteria of fairness and competence. Under the Regulation, member states are only permitted to nominate three candidates for a position (without any order of preference) with the selection and appointment to be done by the Council with the support of an independent panel that reviews and ranks the candidates.

Respect for the integrity of this procedure is crucial to protect trust in the independence of the EPPO. One of the reasons for the selection to be done at the European – and not national – level is because these prosecutors, while part of the EPPO, will have significant powers in regard to the investigations to be conducted in their member states of origin. They cannot owe their appointment to their national governments. The way the decision of the Council in appointing the new prosecutors was taken clearly undermines this objective.

It is true that the Council is not legally bound by the ranking made by the independent panel. But the Council must, at least, provide the reasons for when it opts for a different candidate. The independent panel provided reasons for its ranking. The Council cannot change this ranking without any explanation. In the absence of these reasons, a shadow is cast over the selection made by the Council, diminishing the trust of European citizens in the independence of the prosecutors.

The absence of reasons, as well as the total lack of transparency, also makes it impossible for EU citizens and other EU bodies (in particular the European Parliament) to effectively scrutinise the selection made by the Council.

The suspicion (based on the statements made by some national governments critical of its decision) is that the Council simply replaced the preferences of the independent committee by those expressed by the national governments of the candidates. This undermines the intent of the Council Regulation for the selection to be done at the European level. As stated, the Regulation did not even authorise member states to express a preference for any of the three candidates of their nationality. EU law expressly differentiates instances when the power of appointment is conferred on member states acting together or, as in this instance, it is vested in the Council, a Union institution acting on behalf of the rule of law and governed by the rule of law.

By undermining the role of the independent committee without providing any reasons to do so, the Council undermined the credibility and the independence of the EPPO. This is reinforced by the absolute lack of transparency and the strong suspicion that the choice was ultimately placed in the hands of the national governments of the different candidates. This is the exact opposite of the rule of law that the European Union claims to protect.

It is also contrary to what the EPPO stands for. It is for this reason that we call upon the European Parliament – whose own authority in this matter is also at stake, having helped to set up the independent committee – to seek the annulment of the Council decision before the Court of Justice of the European Union. The Union cannot claim to be a defender of the rule of law if its own Prosecution Office is born in violation of such rule of law.

Signed,

• Alberto Alemanno, Professor, HEC, Paris
• Andrea Simmoncini, Dean, Law School, Universitá de Firenze
• Dimitry Kochenov, Professor, Groningen University Law School
• Dominique Ritling, Professor, Strasbourg University Law School
• Federico Fabrinni, Professor and Director Law Research Center, Dublin City University
• Harm Schepel, Director of Law Programmes, Brussels School of International Studies, University of Kent
• Laurent Pech, Head of the Law Department, Middlesex University, London
• Loic Azoulai, Professor, Sciences Po, Paris University
• Kalypso Nicolaides, Professor, Oxford University and School of Transnational Governance, European University Institute
• Kim Lane Scheppele, Professor, Princeton University
• Miguel Poiares Maduro, Professor, Global Law School, Universidade Católica Portuguesa and School of Transnational Governance, European University Institute
• Oreste Pollicini, Law School, Universitá Bocconi
• Paul Craig, Professor, Oxford University
• Sébastien Platon, Professor of Public Law, University of Bordeaux
• Tomasz Tadeusz Koncewicz, Professor and Director of the Department of European and Comparative Law, University of Gdańsk