Abstract
This book is the result of research led by Bernardi and Negri on the investigation of European fraud in the European Union (EU) Member States, which was part of a research project co-financed by the Commission and European Anti-Fraud Office (OLAF) under the Hercule III Programme on ‘Relationships between the national judicial authorities and the investigative agencies in view of the EPPO: operational models and best practices in the fight against EU fraud’. This research is conducted through a comparative study of the legislation of six Member States – Italy, Spain, France, Germany and the United Kingdom – chosen for their ability to serve as paradigms of the different judicial systems in Europe. Four of the five parts of the book are consequently dedicated to an in-depth overview of the dynamics and rules in relation to the investigation of financial and economic crime in these Member States.
In the first part, Italy and Spain are explored under ‘The fight against financial-economic crime through specialised investigative bodies’. They have in common a criminal justice system characterized by a strong functional dependence between police and public prosecutors and particular importance given to the role of technically specialized bodies. It is shown that in practice the Italian model (Chapter 1) strongly relies on strategically decisive agencies such as the Guardia di Finanza (tax police). The analysis of the Spanish model (Chapter 2) reveals that the administrative authorities are called upon to give mere support and that the public prosecutor, investigating judge and judicial police play the leading role.
In the second part dealing with ‘Establishing specific competences in prosecuting financial economic crime’, the case of France is examined. The French model (Chapter 3) is depicted as quite unique in the sense that the legislator has established multiple administrative and judicial authorities dividing among them the competences related to the activity of combating economic crimes. It is, however, shown that this results in a complex bureaucracy that raises difficulties regarding the distribution of proceedings.
The third part concerns ‘The role of administrative authorities in investigating financial economic crimes’ where Germany and Poland are looked into. It is shown that, in these two countries, administrative control authorities play a significant role in criminal investigations regarding financial and economic crimes and are bestowed with large investigative powers including in criminal proceedings. In Germany (Chapter 4), the model is characterized by a dual approach – the ‘double hat’ model – consisting of the cumulation of tasks and powers by the administrative authorities, authorizing, for example, the German tax authorities to conduct criminal investigations autonomously. In Poland (Chapter 5), the system has followed a similar trend over the years, giving extended powers to administrative authorities to the extent that the public prosecutor has been relegated to the mere role of supervising the investigations.
The case of the United Kingdom is examined in the fourth part dedicated to ‘Prosecuting financial-economic offences outside the Roman legal system’. As opposed to civil law systems, emphasis is placed on the fact that there is almost no involvement of judicial authorities in the investigatory stages in the United Kingdom (Chapter 6). The competence is shared between several specialized bodies such as the City of London Police Economic Crime Directorate. Regarding prosecution, a number of specialist agencies such as the Serious Fraud Office and the Financial Conduct Authority are also involved. The authors highlight the good management of this plurality of actors, stemming from a clear scope of each party’s mandate, evidence exchange rules as well as a clear line of communication through the nomination of a contact point in each body.
The book concludes with the fifth part consisting of two ‘Final cross-sectional essays’. The first deals with ‘Data protection issues in transnational financial-economic investigations’ (Chapter 7). The author insists particularly on the necessity of giving a precise definition of the fact being alleged in order to ensure the protection of personal data and only collecting relevant data. Finally, the outcomes of the research are presented in a ‘conclusive’ chapter written by Negri on ‘Best practices and operational models in financial-economic investigations in Europe in view of the EPPO’ (Chapter 8). Building on the results of the comparative studies showing the heterogeneous and fragmented frameworks for prosecuting and repressing crimes affecting financial interests, the last chapter raises the question of whether we should welcome the establishment of the European Public Prosecutor’s Office (EPPO), given its highly complicated functioning. The author points out the scant attention that was paid, within the architecture of the EPPO, to the initial acquisition of information relating to a criminal offence.
Compared to the structure and investigative means of the EPPO, much less interest was devoted to search and retrieval of information concerning a possible offence. In this respect, two shortcomings are identified: the failure to provide for the establishment of a European police force and the disregard for the role played by preparatory administrative inquiries in criminal investigations. The research stresses the impreciseness of the proposal for a Regulation for the Establishment of the EPPO regarding the transfer of information and the reporting system, which could undermine the potential efficiency of the EPPO. One solution to deal with the flow of crime reports between national administrative agencies and the EPPO could be to give OLAF a strategic role. The authors propose ‘to make OLAF an intermediary body between the EPPO and national administrative agencies, a connecting link able to move within the “grey zone” which precedes the acquisition of reports on alleged offences’ (p. 165). This proposal seems to have struck a chord, given the introduction of a provision called ‘Relations with OLAF’ in regulation 2017/1939 ‘implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office’ finally adopted.
This survey stands out from most research dealing with the drafting of common European rules of criminal procedures. It has the merit, through the analysis of how fraud is investigated in the Member States, of touching upon issues of practical efficiency that EPPO investigations will face. In doing so, it offers – rightly – a rather pessimistic view on the future functioning of the EPPO by insisting on its cumbersome and highly complicated architecture. We can indeed share the doubts of the authors about the actual ability of the EPPO – as it stands in its current form – to improve the performance of Member States when it comes to prosecuting and repressing crimes affecting the interests of the EU.