June 21, 2021

Compliance: at the moment

📧Regarding Compliance: Observations on the first steps of the European Public Prosecutor and her conception of the EPPO's Action: on Health, Infrastructures and Agriculture

by Marie-Anne Frison-Roche

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â–ş It is in its "Risk and Compliance" section that the Wall Street Journal, by its article of June 18, 2021 (➡️📝Europe's Chief Prosecutor Has 300 Cases on Her Plate Already), presents the first steps of the European Public Prosecutor’s Office, since June 1, 2021.

This inclusion presupposes that it is through a Compliance Law perspective that this new body must be understood, in order to understand and anticipate its action.

â–şIn this perspective :

➡️📧Frison-Roche, M.-A., European Public Prosecutor's Office comes on stage: the company having itself become a private prosecutor, are we going towards an alliance of all prosecutors?, June 2, 2021

➡️ đź’¬Frison-Roche, « Le parquet europĂ©en est un apport considĂ©rable au Droit de la Compliance Â» (“The European Public Prosecutor's Office is a remarkable contribution to Compliance Law"), June 14, 2021

 

I. AN ACTION THAT WILL FOCUS ON FIGHTING THE MEANS USED TO DAMAGE THE FINANCIAL INTERESTS OF THE EUROPEAN UNION

The article of the Wall Street Journal takes the form of an interview with the European Prosecutor. Her responses also confirm the consubstantial link between European Public Prosecutor's Office and Compliance Law.

It is remarkable that she immediately says that she hopes the treatment of many cases, especially on healthcare and infrastructure sectors: "Our expectation is to have more cases, especially in the healthcare system, in public procurement, infrastructure, and also in agriculture ".

However, the 2017 European Regulation which established the European Public Prosecutor’s Office said that its "mandate" is to prosecute offenses affecting the "financial interests of the European Union", without being hampered by the cumbersome procedures for cooperation between States while these offenses are most often cross-border.

But one could think that, knowingly taking the means (corruption, money laundering) for the goal, the European Public Prosecutor's Office would immediately pursue not only the defense of the financial interests of the Union (admittedly financial interests damaged by corruption or money laundering) but these facts themselves: thus the European Public Prosecutor's Office works with the European Supervisory Authorities, in particular banking and financial authorities, which fight in Ex Ante against these offenses and prevent them.

 

II. AN ACTION THAT FOCUSES ON SECTORS NOT LEGALLY REGULATED IN EX ANTE BY SECTORAL REGULATORY AUTHORITIES

Moreover, it will be noted that the European Prosecutor is targeting three economic sectors which are not "regulated sectors" in the legal sense of the qualification, that is to say not monitored by a sectoral Regulatory and/or Supervision Authority: Health, Infrastructure and Agriculture.

Thus, the power of Regulatory Law, which relies in its Ex Ante, and its weakness, which derives from the pre-required existence of a sectoral Authority, is compensated: the action of the Public Prosecutor's Office is not limited to legally regulated sectors.

While Competition Authorities are mandated (➡️📅La concurrence dans tous ses Ă©tats, June 25 and 26, 2021) to protect the competitive functioning of the markets, a Public Prosecutor's Office can deal with any infringement without having to determine a market.

For instance, Infrastructures don't constitute pertinent markets but can constitute fields for criminal activities, such as corruption or money laundering, justifying Compliance Law mechanisms. 

What the new European Prosecutor is aiming for, namely Health, Infrastructures and Agriculture, have undoubtedly been damaged both by the sole primacy of the Competition perspective and by a Criminal Law constrained by the difficult inter-State cooperation, even though they are not subject to a supranational Ex Ante Regulation.

The European Public Prosecutor's Office aims to directly improve this, through Entreprises acting in Health, Infrastructures and Agriculture. 

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