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From: General Secretariat of the Council

To: Permanent Representatives Committee/Council

Subject: State of play of the setting up of the EPPO

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ANNEX Non-paper from the Commission services and the European Public Prosecutor’s Office

(EPPO) on the state of play of the setting up of the EPPO

This document presents an update on the preparatory steps taken in relation to the establishment process of the EPPO, as provided for by Council Regulation (EU) 2017/1939, highlighting the progress made since October 2020.

• National implementation measures: The EPPO is based on a Regulation that, by definition,

is directly applicable. In accordance with the principle of sincere cooperation, the

participating Member States are required to take any appropriate measure that is needed for the EPPO to perform its functions, including adapting national legislation to Council

Regulation (EU) 2017/1939. Since March 2018, the Member States’ preparations have been regularly discussed in the EPPO Expert Group, which was established pursuant to

Article 20(4) of Council Regulation (EU) 2017/1939. Following recent exchanges with the Member States, the Commission has observed that the level of preparation among Member States is uneven. The majority of Member States have not yet adopted the necessary

legislation. A number of Member States are severely in delay. This is likely to postpone the operationalisation of the EPPO, which can only take place at the earliest in the first quarter of 2021. The Commission continues to monitor the legal and administrative adaptations in the Member States that are needed to comply with Council Regulation (EU) 2017/1939. It will continue to do so, as to ensure the EPPO can swiftly start its activities as soon as possible.

• Appointment of the European Delegated Prosecutors (EDPs): Bilateral discussions

between the European Chief Prosecutor and national authorities are advancing so as to determine the required number of EDPs per each Member State (two at least) – this is based on the number of EDPs provided for in the Commission’s Draft Budget proposal for 2021. Some Member States have reached an agreement with the European Chief Prosecutor, but only a few have already nominated their EDPs – resulting in delays in the process of setting-up of the EPPO.

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• Decisions for the functioning and activities of the EPPO: The College has adopted a

number of key decisions for the functioning of the EPPO, including: the internal rules of procedure, the rules on conditions of employment of the European Delegated Prosecutors, the internal language arrangements, the rules concerning the processing of personal data, the rules concerning restrictions of certain data-subject rights in relation to the processing of

administrative personal data, the rules concerning the Data Protection Officer, and the rules on public access to documents of the EPPO. The College is in the process of taking the other decisions and measures – such as the decision on the Permanent Chambers – that need to be in place for the start of the EPPO’s activities. 12 working groups of European Prosecutors have been organised to this end.

• Deputy European Chief Prosecutors: On 11 November 2020, the European Prosecutors of

Germany (Andrés Ritter) and Italy (Danilo Ceccarelli) have been appointed as Deputy European Chief Prosecutors.

• Staff recruitment: The recruitment of staff for the EPPO remains on track.

• Budget: For the 2021 budget, the discussion among the Budgetary Authorities continue.

• Case Management System (CMS): A working version is being tested. This version can be

taken into use in December and will be further improved in 2021. In parallel, Member States’ connectivity is advancing.

• Premises: The EPPO premises should be delivered in early 2021. This has no impact on the

start date since until delivery the EPPO staff can continue to work at the transitional workplace in Luxembourg.

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• Delegated Act on personal data and data subjects: The Commission Delegated Regulation

amending Council Regulation (EU) 2017/1939 as regards the categories of operational personal data and the categories of data subjects whose operational personal data may be processed in the index of case files by the European Public Prosecutor’s Office was adopted on 14 October 2020 and notified to the Council and the European Parliament on the same date. It will enter into force at the latest within a period of 2 months of this notification, or before, if the European Parliament and the Council inform the Commission that they will not object.

• Cooperation with third countries: The Member States participating in the EPPO have

agreed on the text of the notification of the EPPO as a competent judicial authority for the purposes of the 1959 European Convention on Mutual Assistance in Criminal Matters and its Protocols. Each Member State will now have to make this notification.

• Cooperation with non-participating Member States (NPMS): A Council Presidency’s

document setting out an interpretation of the existing EU instruments of mutual recognition and judicial cooperation allowing the EPPO to rely on them when cooperating with the authorities of the NPMS has been agreed upon at the technical level. It will be brought to the attention of the Ministers of Justice at the informal videoconference on 2 December 2020. The EPPO has initiated discussions with the relevant authorities of the NPMS for the conclusion of the working arrangements foreseen by Article 99(3) of Council Regulation

(EU) 2017/1939.

• PIF Directive: Directive (EU) 2017/1371 on the fight against fraud to the Union’s financial

interests by means of criminal law (PIF Directive) was due to be transposed by 6 July 2019. The Commission is pursuing infringement proceedings for non-communication of