12 December 2023

Why Poland Should Join the European Public Prosecutor

After the Polish parliamentary elections, the question of rebuilding the rule of law in Poland has been frequently raised in academic debate. The discourse is largely dominated by the status of the so-called neo-judges and the legal effects of rulings of the politically appropriated Constitutional Tribunal. We would like to highlight another problem that the new government will have to deal with – the functioning of the public prosecutor’s office occupied by people associated with the Law and Justice party (PiS). There is a great risk that high-level prosecutors may effectively block or obstruct investigations into the irregularities committed under the PiS government.

We believe that a partial solution to this problem might come from Poland’s quick accession to the European Public Prosecutor’s Office (EPPO) planned by the democratic opposition. The EPPO is an independent body of the EU, responsible for conducting investigations, bringing, and supporting charges against individuals who have committed offences against the financial interests of the EU (offences regulated by the Directive 2017/1371). The entity was set up by Regulation 2017/1939 (EPPO Regulation). To date, 22 EU countries decided to join the EPPO.

If a country joins the EPPO, the competence to prosecute offences against the financial interests of the EU is transferred from a domestic prosecutor’s office to the body. Investigations are carried out by the European Delegated Prosecutors (EDPs) who are appointed at the EU level and operate outside the structure of the national prosecutor’s office. Therefore, Poland’s accession to the EPPO will transfer the competence to investigate irregularities that have occurred under the PiS government, related to the improper spending of EU funds by public institutions, from the Polish prosecutor’s office to the highly independent EDPs. Moreover, joining the EPPO would demonstrate the new government’s commitment to EU values, and strengthen the rule of law by raising the standards of the transition process.

The post argues why Poland should join the EPPO in three steps. Firstly, it briefly presents the takeover of the Polish prosecutor’s office and the difficulties arising from its functioning. Then, it provides a closer look at the EPPO. Finally, it discusses the implications of joining the EPPO for the conduct of investigations into misuse of EU funds and more generally for the rule of law standards.

Takeover of the Public Prosecutor’s Office

Only a few months after taking power, PiS changed the structure of the public prosecutor’s office, adopting a model of complete systemic subordination of the prosecution service to the executive. Since 2016, the position of the Prosecutor General has been held ex officio by the Minister of Justice (Zbigniew Ziobro) who is an active politician. The new legislation gave the Prosecutor General almost unlimited powers over prosecutors, which in practice led to the suppression of the independence of the prosecutor’s office.

The changes were also linked to a large-scale replacement of staff. More than 100 experienced prosecutors from the highest levels of the prosecutor’s office were dismissed overnight without any explanation. In addition, 160 prosecutors decided to retire, believing that the changes made to the prosecution service undermine their independence. The vacant positions were filled by people with connections to the Prosecutor General and the milieu of PiS politicians. Meanwhile, independent prosecutors opposing the changes were subjected to systematic repression.

The politically controlled prosecutor’s office has been actively used for political reasons since 2016. Prosecutors pursued cases involving political opponents of PiS and refused to initiate proceedings in cases involving politicians from the ruling party. A particular example is the refusal to open an investigation into the alleged fraud of European Parliament funds by the Solidarna Polska party led by Zbigniew Ziobro.

The Old Public Prosecutor’s Office and the New Government

Anticipating the possible loss in the parliamentary elections, in mid-2023 PiS prepared amendments to the organisation of the prosecutor’s office. The changes were aimed at strengthening the position of the high-level prosecutors associated with PiS. They transferred to the National Prosecutor – who is a first deputy of the Prosecutor General – most of the competences of the latter. Consequently, the National Prosecutor was awarded control over the entire structure of the public prosecutor’s office. The amendments stipulate that the National Prosecutor and other high-level prosecutors may be dismissed by the Prime Minister at the request of the Prosecutor General after obtaining a written consent of the President. Hence, the new government and the new Prosecutor General will have to cooperate with the prosecutor’s office occupied by people associated with PiS. In fact, it seems unlikely that President Andrzej Duda, whose term of office expires in 2025, will agree to the dismissal of the high-level prosecutors.

The prosecutor’s office being taken over by people associated with PiS will impede the transition from the hybrid regime towards democratisation of the country. Firstly, the National Prosecutor is likely to come into conflict with the new Prosecutor General (his de iure superior). Moreover, the high-level prosecutors, may effectively block or obstruct investigations into the irregularities committed under the PiS government. We believe that the problem of polarisation of the prosecutor’s office (prosecutors loyal to the current leadership and those opposed to it) will be one of the most serious challenges of the transition.

One possible solution to this situation would be to amend the law organising the prosecutor’s office in Poland. This change would most likely be prevented by the President as the democratic parties do not have the majority to overturn a potential presidential veto. Another solution that the new government should, in our view, immediately benefit from is Poland’s accession to the EPPO.

Structure of the EPPO

The EPPO is a decentralised entity operating on two levels. The central level is constituted by the College, the Permanent Chambers, the European Chief Prosecutor (currently Laura Kövesi), her Deputies, the European Prosecutors and the Administrative Director. The decentralised level, on the other hand, is composed of the EDPs. The EDPs are elected in a two-tier procedure (national and EU level). They are nominated by the Member States and then appointed by the College. The EDPs shall demonstrate independence beyond doubt and shall possess the necessary qualifications and relevant practical experience of their national legal system. The number of EDPs in the Member States is agreed between a national government and the European Chief Prosecutor (at least two).

The EDPs bear the main burden of the EPPO’s activities. Indeed, they conduct on behalf of the EPPO investigations into offences against the financial interests of the EU in the Member States. In principle, the EDPs have the same competences as domestic prosecutors in terms of conducting pre-trial investigations and bringing and supporting charges against alleged perpetrators.

Article 6 of the EPPO Regulation provides the EPPO with guarantees of independence both at central and decentralised levels. The EDPs act completely independent from a national prosecutor’s office. They do not operate within the framework of the domestic prosecution service and do not follow instructions of national prosecutors. The EDPs only receive instructions and recommendations from the European Prosecutor and the Permanent Chambers. The EDPs shall be free from any political pressure.

The EPPO in Action

The EPPO has been extremely transparent in its practice. Pursuant to Article 94 of the EPPO Regulation, the body provides the European Parliament, the Council and the European Court of Auditors with a report on budgetary and financial management, and publishes annual reports on its activities. As the 2022 report shows, 3318 crime reports were processed that year. Moreover, the EPPO opened 865 new investigations in 2022, with a total of 1117 active investigations pending for an estimated damages of €14.1 billion. In contrast, in its report for 2022, OLAF has indicated that the value of reported fraudulent breaches of the EU financial interests fluctuated around €1.77 billion. The difference in these two reports demonstrates the effectiveness of the EPPO in combating the offences in its competence.

The number of initiated investigations confirms the effectiveness of the EPPO. The vast majority were initiated by reports from national authorities as in line with Article 24 of the EPPO Regulation, they are obliged to report any criminal conduct for which the EPPO could be competent. In 2022, 16 EDPs in Italy received 330 reports about possible irregularities only from state institutions. Consequently, they opened 265 new cases with estimated damages of €2 billion. Moreover, the EPPO performs outstandingly in cases where the suspects are public officers. This illustrates that the EPPO operates completely independently and free from political pressure.

Poland has so far been reluctant to cooperate with the EPPO – no Working Agreement has yet been concluded. Moreover, Poland has also repeatedly refused to collaborate with the EPPO in already ongoing investigations. The European Chief Prosecutor has sent a letter to the European Commission regarding this matter.

Implications of joining the EPPO

Firstly, the EPPO could get involved in investigating irregularities that have occurred under the PiS government, related to the improper spending of EU funds by public institutions (e.g. irregularities in distributing grants by the National Centre for Research and Development). According to OLAF’s annual report for 2022, Poland ranks third (behind Italy and Hungary) in the number of investigations initiated into misuse of EU funds.

Polish EDPs, due to the need for approval at the College level, would certainly not be people with any political connections – whether with PiS or the new government’s milieu. Indeed, candidates for EDPs must demonstrate independence beyond doubt to be appointed. Thus, Poland’s accession to the EPPO would ensure that investigations into the misappropriation of EU funds by the previous government would be carried out transparently and free from political influence and biases. The EDPs act independently and cannot receive any instructions from the head of the national prosecutor’s office. Therefore, the actions of the EDPs could not be associated with the will of the new government and the Prosecutor General to retaliate against politicians and people who cooperated with PiS. In this way, the presence of the EPDs would strengthen standards of the transition out of hybrid regime and towards democratisation.

Furthermore, adopting a broad perspective, joining the EPPO would be a clear signal of Poland’s commitment to EU values: the rule of law and democracy. It would also symbolise the end of the politicisation of the public prosecutor’s office in Poland by PiS, which used to refuse to cooperate with the EPPO. By joining the EPPO, the new Polish government would demonstrate its willingness to hold its predecessors to account transparently and without political biases.

Moreover, the functioning of the EPPO in Poland would provide a model for the organisation of an independent prosecution service from which domestic prosecutors could benefit. The new Prosecutor General and independent national prosecutors, in accordance with the obligation under Article 24 of the EPPO Regulation, would report to the EDPs any criminal conduct for which the EPPO could be competent. This cooperation could certainly not be disrupted by a bunch of high-level prosecutors associated with PiS. They would simply have no impact on the work of the EDPs and could not prohibit domestic prosecutors from reporting alleged crimes. The Polish prosecutor’s office headed by the new Prosecutor General, through robust cooperation with the EDPs, would strengthen public trust and its legitimacy in the Polish society, where 64% of its members trust the EU.

Conclusions

In the current political situation, it is difficult to expect changes in the structure of the prosecution service in Poland. For the moment, we do not know how the management of the prosecutor’s office by the new Prosecutor General will look in practice. Some scholars (e.g. Marek Chmaj) point out that the Prosecutor General may effectively manage the prosecutor’s office and that the President’s consent is not necessary for the dismissal of the National Prosecutor. Irrespective of future events, we believe that the new government’s priority and one of its first decisions should be Poland’s accession to the EPPO. Firstly, it would be a symbolic return of Poland to the cluster of democratic countries that share EU values. It would guarantee transparent and politically unbiased investigations into the misuse of EU funds under the PiS government. We believe that joining the EPPO will be one of the core elements of a successful transition out of the hybrid regime with respect for the rule of law standards.


SUGGESTED CITATION  Schultz, Andrzej; Schultz, Kinga: Why Poland Should Join the European Public Prosecutor, VerfBlog, 2023/12/12, https://verfassungsblog.de/why-poland-should-join-the-european-public-prosecutor/, DOI: 10.59704/4e3f361709cc0c71.

Leave A Comment

WRITE A COMMENT

1. We welcome your comments but you do so as our guest. Please note that we will exercise our property rights to make sure that Verfassungsblog remains a safe and attractive place for everyone. Your comment will not appear immediately bu