By Senta May and Nerea Peris
When you hear the term forum shopping, you might think of spending a fun afternoon at the mall. But in fact, this concept is about something much more serious. In order to explain this, let us conduct a little mental exercise.
Imagine you are suspected of having illegally obtained subsidies from the EU for the purpose of constructing power plants in several Member States. Imagine further that a European Public Prosecutor Office (‘EPPO’), such as brought forward by Council Regulation Proposal 13459/16 has already been created. According to Article 86 TFEU, the EPPO “shall be responsible for investigating, prosecuting and bringing to judgment […] the perpetrators of, and accomplices in, offences against the Union’s financial interests”. Therefore, the EPPO is an EU body in charge of investigating and prosecuting offences like the one you that you are being accused of having committed. Consequently it takes on the investigation of your case and if it finds enough evidence, it will bring the case before a national court.
The EPPO will enjoy a great autonomy in carrying out its task. This may entail some problems. Continuing with our mental exercise, imagine than you are a national of Member State B and have constructed power plants not only there, but also in Member State A and Member State C, making your case one with a cross-border dimension. And here is where the problem of forum shopping begins. Article 22 (4) of the Regulation Proposal provides that a case shall be initiated by the European Delegated Prosecutor from the Member State where the focus of the criminal activity is. The EPPO may, however, deviate from this principle where this is duly justified, taking into account the place of habitual residence of the suspect, his or her nationality and the place where the damage has occurred. But what exactly do the terms “focus of the criminal activity” and “duly justified” mean? As you can see, this is subjective and open to interpretation thus leaving significant discretion to the EPPO when a case is connected to several Member States. This discretion means that it is very hard to hold the EPPO accountable for its choice of forum. He can use this accountability gap in its favour by bringing the case before a court in the Member State with the most lenient prosecutorial oversight, choosing the forum as it pleases, or in other words, “going shopping” for a forum.
This not only affects the choice of the court where the case will eventually be prosecuted but also the jurisdictions where evidence is collected and coercive measures are conducted. As far as the investigatory powers are concerned, Article 31 Regulation Proposal provides that evidence presented by the EPPO shall not be denied admission on the mere ground that it was gathered in another Member State or in accordance with the law of another Member State. This also leaves room for forum shopping as in case the EPPO is denied authorisation for a measure in one Member State, it can just turn to another Member State where such a measure is possible. There is no restriction in the proposal to avoid such a deliberate circumvention of the procedural safeguards of a particular legal order. Hence, once again it will be difficult to hold the EPPO accountable for its decision of where to conduct investigatory measures.
To illustrate this let us go back to our story. Imagine that in Member State A the procedural laws equip prosecutors with considerable powers and they do not need a judicial order to intercept communications, whilst in Member States B and C such an order is needed. Being aware of that, the EPPO decides to gather the evidence through MS A’s laws and intercept your communications with your business partners and even with your lawyer. After gathering all the evidence, the EPPO considers that it should bring the case before a court, since it considers that there are enough grounds to suspect that you committed the offence. However, the EPPO does not want to bring the case before the national courts of Member States A and B, as their laws are in general quite lenient and do not even punish financial offences with prison. Instead, the EPPO brings the case before a court in Member State C. There the laws are stricter and you will be greatly punished if found guilty. This sounds a bit unfair for you, doesn’t it? The EPPO can simply go to this and that “shop”, picking the clothes that suit it best and you have very little possibility to challenge this. And even if there was a way to fight some of these decisions, you and your lawyer will be confronted with some practical challenges. Often you might not know where a measure will be conducted and what laws will apply to your case until the EPPO actually goes through with it. You are then likely confronted with multiple legal systems, some of them unknown to you and in a language that you don’t speak.
So as you can see the term forum shopping stands for a very serious problem, which, while strengthening the powers of the prosecutor greatly weakens the position of the suspect and makes the job of the defence much harder.
What can be done to avoid this kind of situation once the EPPO proposal actually does get implemented? First of all, we think it is important that some changes are made to the proposal in order to provide more clarity about the competent jurisdiction for a case, limiting the discretion of the EPPO when it comes to forum choice. As far as investigative measures are concerned, harmonising the procedural rules of the Member States to a certain extent would be the best way to go, as it would put an end to legal uncertainty and avoid a race to the bottom when it comes to suspect protection. However, for most Member States criminal procedural rules are closely connected to the idea of sovereignty and they are opposed to any kind of adaptation in that area. It is therefore not likely that harmonisation will take place in the near future. Taking this into consideration, we think that greater focus should be put on improving defence rights. This could for example be achieved by establishing a coordination office on European level where suspects and their lawyers could get information on procedural rights in other Member State as well as find contact persons to assist them with the defence. That way the distortion of power caused by the possibility of forum shopping could at least be alleviated to some extent. Finally, we think that the proposal should include a provision referring to the Charter of Fundamental Rights, and especially stressing the right to fair trial to help put more focus on what is at risk in the EPPO cases and turn some special attention to the subject.