MINISTERS’ DEPUTIES

CM Documents

CM(2024)32-add3

22 February 2024[1]

1494^th meeting, 5 April 2024

10 Legal questions

10.3 European Committee on Crime Problems (CDPC)

c. Feasibility study regarding a new instrument on co-operation with the European public prosecutor’s office under the European Convention on Mutual Assistance in Criminal Matters

Item to be considered by the GR-J at its meeting on 19 March 2024

Contents

1. Introduction. 3

2. Summary timeline of discussions within the PC-OC. 3

3. Available options, with possible advantages and disadvantages. 5

4. PC-OC’s assessment of the elements at its disposal 6

5. Conclusion. 8

Appendices: 9

Appendix I: Legal opinion of DLAPIL on the legality of unilateral declarations under the Convention, November 2020 9

Appendix II: Replies to the PC-OC’s first questionnaire addressed to non-EU member States regarding co-operation with the EPPO under the Convention. 13

Appendix III: Replies to the PC-OC’s second questionnaire on the preferences of States Parties’ to the Convention regarding options to regulate co-operation with the EPPO under the Convention. 20

Appendix IV: Legal opinion of DLAPIL on the compatibility of a self-standing legal instrument with the Council of Europe treaty practice. 24

Appendix V: Information note provided by the EPPO on its existing co-operation with non-EU member States 26

1. Introduction

The European Public Prosecutor’s Office (EPPO) is an independent public prosecution office of the European Union which started its operations in June 2021. It is responsible for investigating, prosecuting and bringing to judgment crimes against the financial interests of the EU. The EPPO undertakes investigations, carries out acts of prosecution and exercises the functions of prosecutor in the competent courts of the participating EU member States, a competence reserved up to then only to the national authorities. The establishment of this unprecedented institution brought unique challenges regarding the application of the European Convention on Mutual Assistance in Criminal Matters (“the Convention”) regarding co-operation between the EPPO and non-EU member States which are Parties to the Convention.

The PC-OC, which was initially tasked with preparing an instrument to provide a legal basis for this co-operation, was subsequently called on to study the feasibility of such an instrument, taking into account a rapidly changing situation and diverging opinions between States Parties to the Convention.

The following brings together the elements of information at the disposal of the PC-OC, including the relevant developments and the timeline of its discussions on these issues, two questionnaires it sent out to States Parties to ascertain their preferences, opinions of the Directorate of Legal Advice and Public International Law (DLAPIL) of the Council of Europe and information submitted by the EPPO on the existing state of co-operation with non-EU member States under the Convention. This is followed by an assessment of the PC-OC of the existing options regarding future co-operation with the EPPO under the Convention, as well as the desirability and feasibility of negotiating a binding legal instrument to regulate this issue.

2. Summary timeline of discussions within the PC-OC

The potential application of the Convention to mutual legal assistance (MLA) requests between the EPPO and non-EU member States Parties to the Convention has been on the agenda of the PC-OC for a number of years. The PC-OC started discussing this issue before the EPPO started its operations in June 2021.

In May 2019, the European Commission already evoked the possibility for participating member States in the EPPO to make declarations under Article 24 of the Convention, designating the EPPO as a national judicial authority for the purpose of issuing MLA requests and, within its competence, executing such requests. In the course of 2021 and 2022, the majority of participating EU member States made unilateral declarations to that effect.

From an early point, some non-EU member States raised doubts about the legality of such declarations and their effect concerning their obligations under the Convention. Following a request by the PC-OC and the CDPC, the Directorate of Legal Advice and Public International Law of the Council of Europe provided a non-binding legal opinion in November 2020 (Appendix I), expressing the following view:

“20. It may thus be concluded that a declaration under article 24 of the MLA Convention appears to be legally possible for the purposes of establishing the EPPO as a judicial authority under the 1959 MLA Convention and its protocols. However, other contracting States would have the right to refuse co-operation with the EPPO.

21. There are, however, legal uncertainties resulting from the fact that the European Union as such will not be party to the convention. The possibility of establishing the EPPO as a judicial authority by means of unilateral declarations should therefore be seen only as the beginning and not the end of a closer integration of the European Union and its bodies into the framework of judicial co-operation under Council of Europe treaties. Given its competences in the field, it would only be natural for the Union itself to become a party to the relevant Council of Europe conventions.”

In parallel to these discussions, in October 2020 the PC-OC asked the CDPC and Committee of Ministers to give it a mandate to prepare a draft binding instrument concerning co-operation with the EPPO under the European Convention on Mutual Assistance in Criminal Matters and the Additional Protocols thereto. This request was accepted by the CDPC and the Committee of Ministers. The preparation of a draft Protocol to the Convention on this issue was thus included in the PC-OC’s terms of reference 2022-2025, to be finalised by the end of 2023.

In May 2021, an exchange of views within the PC-OC revealed that the European Commission and the EPPO supported the initiative to work on a protocol to the Convention to ensure a solid legal basis for this co-operation. Provisional agreement was also reached on the scope and the following main elements to be considered in the protocol:

- it should allow the accession of the EU to the Convention and additional protocols;

- the effects of this accession should be limited to the needs of the EPPO;

- account should thereby be taken of a possible evolution of the material competence of the EPPO;

- the EPPO is an independent body and will apply MLA both as a requesting and, within its competence, as a requested authority;

- a clause for provisional application would be needed, pending the ratification by all Parties;

In this connection, the PC-OC decided to check the provisions of the Convention and the additional protocols on their compatibility with the specific nature of the EPPO.

However, after examining various options regarding a protocol, the PC-OC came to the conclusion in November 2021 that the solution of an Additional or Amending Protocol would be legally problematic for the following reasons:

- An Additional Protocol is only open to Parties to the Convention - the EU would not be able to accede to an Additional Protocol, as it is not a Party to the Convention;

- An Amending Protocol would amount to a long list of articles, changing most of the articles of the Convention and its two Additional Protocols (as listed in a document prepared by the Secretariat). Moreover, an Amending Protocol would require ratifications by all Parties (and the EU), which means that its entry into force would take many years.

As a consequence, the PC-OC concluded that the only option to provide a solid legal basis to address the problem of Parties who are not able to co-operate with the EPPO would be the conclusion of a treaty, preferably named an “agreement” between the EU and the Parties to the Convention on the application of the Convention on Mutual Assistance in Criminal Matters and the Additional Protocols thereto for the co-operation with the EPPO. The PC-OC considered that this agreement would be a relatively short binding instrument that could enter into force after just a few ratifications including the EU.

The PC-OC thus requested the CDPC to invite the Committee of Ministers to authorise the negotiation of such an instrument. However, at the following plenary meeting of the CDPC, the then Presidency of the EU informed the committee of the common position of EU member States that they considered that they were not yet “in a position to recommend to the Committee of Ministers of the Council of Europe to agree on a mandate for a self-standing binding instrument, as proposed by the PC-OC”, before exploring if and to what extent the unilateral declarations can be considered as an appropriate legal basis and receive any relevant information from the non-EU partners to that effect. The CDPC consequently instructed the PC-OC to re-examine these issues on the basis of a questionnaire to be sent to non-EU States Parties to the Convention.

In the course of 2022, the PC-OC examined the replies to its questionnaire (Appendix II), which revealed that non-EU States Parties to the Convention appeared to be evenly split between those that considered that the unilateral declarations were sufficient to co-operate with the EPPO and those that did not, with some others indicating that they could co-operate with possible limitations. At the same time, the overwhelming majority of responses expressed support for or a neutral stance towards the possibility of negotiating a new binding legal instrument to provide a legal basis for future co-operation with the EPPO.

On the basis of these replies and the discussions held in the PC-OC and its restricted group of experts (PC‑OC Mod), the PC-OC reached the conclusion in November 2022 that it would be unrealistic, under the current circumstances, to expect to reach an agreement on a new instrument on this matter within the timeframe initially envisaged in the terms of reference of the PC-OC, “taking into account the positions expressed by different delegations and noting the shift in attitudes since the adoption of the current terms of reference of the PC-OC”.

Accordingly, it proposed to the CDPC to invite the Committee of Ministers to replace the relevant deliverable in the PC-OC’s terms of reference with a study to assess the feasibility of negotiating a binding legal instrument regarding the application of the European Convention on Mutual Assistance in Criminal Matters

on the relations with the European Public Prosecutor’s Office. In order to lay the groundwork for this study, the PC-OC instructed the Secretariat, under the supervision of the Chair, to prepare a document setting out the options considered thus far by the PC-OC in this context, and to prepare a new questionnaire, to be addressed to all States Parties to the European Convention on Mutual Assistance in Criminal Matters, in order to obtain a clear picture regarding the preferences of the Parties, including of the participating member States of the EPPO, vis-à-vis these options. This approach was endorsed by the CDPC at its following plenary meeting in November 2022.

The PC-OC consequently sent a second questionnaire to delegations in December 2022, regarding the preferred option to provide a legal basis to co-operation with the EPPO under the European Convention on Mutual Assistance in Criminal Matters and the Additional Protocols thereto. While examining the replies to this questionnaire (see Appendix III), the PC-OC noted that the majority of responding delegations expressed a preference for a self-standing legal instrument for this purpose, while also noting the absence of a clear position expressed by the EU on this question. Considering that the position of the EU is crucial in order to assess the feasibility of a new instrument, the Chair of the PC-OC entered in contact with the Presidency of the Council of the European Union and the European Commission. The EU side was expected to define its position on this matter before the PC-OC plenary meeting in November 2023.

At its plenary meeting in May 2023, the PC-OC examined a draft self-standing agreement on co-operation with the EPPO, based on a proposal by the Swiss delegation and the discussions held at the 33rd PC-OC Mod meeting (28 February-2 March 2023). The PC-OC decided to consult the DLAPIL on the compatibility of such an instrument with the treaty practice of the Council of Europe, while bearing in mind that this draft does not constitute the beginning of negotiations of such an instrument. The DLAPIL provided its opinion in June 2023, indicating that while unprecedented, there was no legal impediment for such a self-standing agreement. The DLAPIL nevertheless pointed to a number of problematic issues regarding the text that served as an example of such agreement (see Appendix IV).

At the PC-OC’s invitation, the EPPO provided information regarding its existing co-operation with non-EU member States as regards mutual legal assistance requests, focusing on its relations with non-EU member States Parties to the Convention (see Appendix V).

At the same meeting in May, the PC-OC decided to set up a working group composed of its Chair, its Vice-Chair and the Austrian, French, German and Swiss delegations, to process the available information and lay the groundwork for its feasibility study, and to involve the European Commission in this work.

3. Available options, with possible advantages and disadvantages

During the lengthy discussions it held on the issue, the PC-OC identified the following as the only viable options regarding future co-operation between the EPPO and non-EU member States under the Convention. The respective advantages and disadvantages are summarised under each option.

A. No new legal instrument

This option implies that co-operation between non-EU member States and the EPPO would be solely based on the unilateral declarations of participating EU member States designating the EPPO as a national judicial authority.

Advantages:

- No further work would be necessary.

Disadvantages:

- A number of non-EU member States indicated at different stages that they cannot co-operate on this basis using the Convention, while some others indicated that they cannot apply the full range of mutual assistance options available in the Convention;

- Given the DLAPIL’s opinion that contracting States would have the right to refuse co-operation with the EPPO on the basis of these unilateral declarations, co-operation might be subject to changing interpretations and cause a degree of legal uncertainty.

B. A Protocol to the Convention

The PC-OC determined that the only viable option in this respect appears to be an Amending Protocol, since an Additional Protocol is only open to existing Parties to the Convention which would preclude accession by the EU.

Advantages:

- Would provide a solid legal basis for co-operation with the EPPO, with the EU becoming a Party in its own right to the Convention.

Disadvantages:

- Would be a cumbersome process, involving the modification of the entire Convention in order to adapt its terminology to encompass co-operation with the EPPO. This may make it less user-friendly for practitioners;

- The asymmetry of possibilities of mutual assistance between the EU/EPPO and other States Parties (for example the inability of the EPPO to initiate investigations on request) could be difficult to build into the Convention;

- Would require ratification by all Parties and the EU to enter into force, which means that the practical problems would persist for many years.

C. A self-standing instrument

This was the option favoured by the PC-OC in November 2021, in the form of an “Agreement between the EU and the Parties to the Convention on the application of the Convention on Mutual Assistance in Criminal Matters and the Additional Protocols thereto for the co-operation with the EPPO”. It is also the option overwhelmingly preferred by States Parties who declared themselves in favour of a binding instrument to provide a legal basis for co-operation with the EPPO under the Convention.

Advantages:

- Subject to further assessment, it could be a relatively short instrument, and thus potentially be faster to negotiate;

- Could enter into force with a smaller number of ratifications (including the EU) in comparison to an Amending Protocol.

Disadvantages:

- Would be a novel solution, with no precedent to rely on in the Council of Europe context;

- As the DLAPIL opinion of June 2023 indicates, there would nonetheless be important and complicated legal issues to resolve.

4. PC-OC’s assessment of the elements at its disposal

The PC-OC considers that assessing the desirability and feasibility of regulating co-operation with the EPPO under the Convention with a new binding instrument is an exercise that is considerably different from an ordinary feasibility study for a new instrument within the Council of Europe Framework. There is universal agreement among States Parties to the Convention that legal co-operation between the EPPO and non-EU member States is highly desirable, and that the Convention constitutes a logical legal basis for such co-operation. There is also wide agreement that it is crucial to start this co-operation as quickly as possible, including on the basis of existing unilateral declarations whenever the legal system of a State Party is able to accommodate these declarations as a sufficient legal basis for co-operation using the Convention, at least in the short term.

At the same time, the PC-OC observes that the EPPO is a highly novel and complex institution, including due to the fact that not all EU member States participate in it and that European Delegated Prosecutors may have recourse to the powers of a national prosecutor of a member State. It is natural that its integration

into the international mutual legal assistance framework, exemplified by the 1959 European Convention on Mutual Assistance in Criminal Matters, raises complex questions and a degree of legal uncertainty.

On the basis of the elements at its disposal, the PC-OC considers that of the three options it has hitherto considered, the second one, namely an Amending Protocol to the Convention to allow for the EU to become a Party in its own right to the Convention, can be eliminated as impracticable, owing to the very cumbersome negotiation and ratification process it would entail, which is likely to cause more problems than it resolves.

In the light of this consideration, the outstanding question before the PC-OC can be summarised as follows: “Is it desirable that co-operation between the EPPO and non-EU member States Parties under the Convention be regulated by a self-standing agreement? If so, would it be feasible to negotiate such an agreement?”

The PC-OC observes that the potential added value of such an agreement, as opposed to co-operation solely based on unilateral declarations made by EU member States under the Convention, would consist in the following:

· A number of non-EU member States indicated that their national legal framework does not allow them to consider the unilateral declarations as a sufficient legal basis for co-operation with the EPPO, which is an institution that is part of the EU, which is in turn neither a State within the meaning of the Convention nor a Party to it. A self-standing agreement would allow these non-EU member States to have the clear and explicit legal basis necessary for such co-operation;

· It would allow some other non-EU member States who indicated that they may have difficulty applying the full range of measures provided for under the Convention to their co-operation with the EPPO to be able to do so;

· It would provide a higher degree of legal certainty for all States Parties involved, as a long-term solution to outstanding questions regarding legal co-operation with the EPPO, which also corresponds to initial indications from the EU that the unilateral declarations were primarily intended as a short or medium-term solution.

This added value would need to be weighed against the advantages of opting for the alternative, i.e. continuing with the unilateral declarations also in the long-term, possibly to be complemented with bilateral arrangements between the EU and non-EU member States. There are indications that some non-EU member States were able to overcome their initial reluctance to co-operate with the EPPO under the Convention. With the initiation and intensification of the operations of the EPPO, it is likely that there will be a momentum in this direction. The PC-OC nevertheless bears in mind that this co-operation only started very recently and, to its knowledge, has not yet been tested in national courts.

The PC-OC also notes that, while less cumbersome than an amending protocol, a self-standing instrument would nonetheless need to resolve a number of complex legal questions, as pointed to in the June 2023 opinion of the DLAPIL. This implies that the negotiations would need to be substantial and require some resource investment by the PC-OC, by States Parties and the Council of Europe. Finally, the PC-OC is also aware that such negotiations might entail complex internal procedures within the EU itself.

Ultimately, the PC-OC considers that the main factor determining the feasibility of negotiating a self-standing agreement is the willingness of States Parties to go in either one of these two directions. While the replies to the PC-OC’s questionnaire indicate a general trend in favour of a self-standing agreement or a neutral position among responding States, the PC-OC also notes that many have not taken an explicit position, including most significantly, most EU member States and the EU as a whole. The PC-OC considers that without the support of the latter, a self-standing agreement would not only be unfeasible, but legally inconceivable.

A working group set up by the PC-OC discussed these issues on 13 September 2023. While acknowledging that a Council of Europe based legal solution to this issue in the form of a self-standing agreement may have added value for some States Parties, it considered that the EU's position was crucial for a final analysis regarding the feasibility of such an instrument.

An outline for the present feasibility study was examined and discussed in the meeting of the Council Working Group on Judicial Cooperation in Criminal Matters (COPEN) on 26 September 2023. The European Commission informed the PC-OC Mod on 27 September 2023 that from these discussions it emerged that a new self-standing legal instrument on the co-operation with the EPPO was not generally supported by the EU member States.

5. Conclusion

In the light of the preceding analysis and taking account of the position of the EU member States, the PC-OC considers that a self-standing agreement to regulate co-operation between the EPPO and non-EU member States under the Convention is not feasible at this stage, given that support from the EU would be indispensable for such an endeavour. The PC-OC considers that this question could be re-examined if there is a change in the position of the EU member States in the future.

Appendices:

Appendix I: Legal opinion of DLAPIL on the legality of unilateral declarations under the Convention, November 2020

1. By letter dated 30 October 2020, Ms Laurence Fontana Jungo, Vice-Director from the Swiss Federal Office of Justice/Domaine de direction Entraide judiciaire internationale requested a legal opinion on a series of questions related to the European Union’s European Public prosecutor’s office (EPPO) and its relationship with the Council of Europe’s legal instruments on mutual assistance in criminal matters. This request was backed by the European Committee on Crime Problems (CDPC) which, at their 78th Plenary session on 3-4 November 2020, instructed the Secretariat to request a legal opinion from the Directorate of Legal Advice and Public International Law (DLAPIL) on certain issues related to immediate and short-term solutions envisaged with regard to co-operation between the EPPO and non-EU member States.

2. The following legal opinion addresses the questions raised. The opinion can only provide the view of DLAPIL. It cannot give an authentic interpretation of the relevant treaties, as only their parties are in a position to do so.

Validity of a declaration in favour of EPPO

3. The first question asks in substance whether the EPPO can be validly presented by means of a notification as a judicial authority for the purposes of mutual legal assistance under the 1959 MLA Convention and its protocols.

4. Article 24 of the 1959 MLA Convention as amended by its 2^nd additional protocol (CETS 182, 2001) provides as follows:

“Any State shall at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by means of a declaration addressed to the Secretary General of the Council of Europe, define what authorities it will, for the purpose of the Convention, deem judicial authorities. It subsequently may, at any time and in the same manner, change the terms of its declaration.”^{^[2]}

5. According to the Swiss Federal Office of Justice, the term ‘judicial authority’ within the meaning of article 24 of the 1959 MLA Convention has to be interpreted in good faith in accordance with the ordinary meaning to be given to this term in the light of its object and purpose (article 31 (1) of the Vienna Convention on the Law of Treaties), in particular in relation to article 1 (1) of the 1959 MLA Convention which provides that “[t]he Contracting Parties undertake to afford each other … the widest measure of mutual assistance in proceedings in respect of offences the punishment of which … falls within the jurisdiction of the judicial authorities of the requesting Party.” The term ‘Contracting Party’ having to be understood in its ordinary meaning which, according to the Swiss Federal Office of Justice, means that only letters rogatory issued by judicial authorities of the Contracting Parties must be executed. It would follow that only authorities belonging to a contracting party may be ‘authorities’ within the meaning of article 24 of the 1959 MLA Convention to be included in the declaration.

6. The EPPO has been established under Council Regulation (EU) 2017/19392^{^[3]} as an independent and decentralised prosecution office of the European Union with the competence to investigate, prosecute and bring to judgment crimes against the EU budget, such as fraud, corruption or serious cross-border VAT fraud (so-called ‘PIF crimes’). The Regulation establishes a system of shared competences between the EPPO and national authorities in tackling such cases. The EPPO consists of two levels. A Central Office at the seat of the EPPO in Luxembourg comprising the European Chief Prosecutor, its two Deputies, the European Prosecutors (one per participating EU member State) and the Administrative Director. The decentralised level consists of European Delegated Prosecutors (EDP) located in the participating EU member States (currently 22). The EDP are taking operational decisions in individual cases. They are the organs responsible for conducting investigations and prosecutions.

7. Under article 13 (1) of the Regulation the EPD have “the same powers as national prosecutors in respect of investigations, prosecutions and bringing cases to judgment” and “shall act on behalf of the EPPO in their respective member State.” According to article 17 (2) of the Regulation, the EDP are “active members of the public prosecution service” and “may … exercise functions as national prosecutors, to the extent that this does not prevent them from fulfilling their obligations under the Regulation” (article 13 (3) of the Regulation). The EDP will thus be fully integrated in their respective national criminal justice system. This is essential because any criminal proceedings initiated by the EPPO will be conducted according to the laws of one of the participating States. The EDP’s ‘double hatted’ status is explicitly acknowledged in article 104 (5) of the Regulation. The EDP continue their functions as national prosecutors and, at the same time, may use their powers as national prosecutors and request legal assistance in criminal matters from the authorities of third countries.

8. This hybrid structure must be taken into account when examining whether the EPPO can be presented by means of a notification as a judicial authority for the purposes of mutual legal assistance under the 1959 MLA Convention and its protocols. While the EPPO is not a judicial authority of any one particular contracting party, it is a prosecuting authority common to 22 contracting parties established within the framework of a supranational organisation. This authority is moreover embedded, through the EDP, in the national judicial systems of all participating States.^{^[4]}

9. Under international law, States are entitled to set up international organisations and to endow them with certain competences. 22 EU member States created the EPPO and transferred certain clearly defined competences to it. Confronted with a similar case, the European Court of Human Rights applied the logic of succession, a well-known concept under international law. The question was whether to apply the ECHR, in particular the right to free elections under article 3 of Protocol No. 1 to the ECHR, to an EU body such as the European Parliament. The European Commission of Human Rights initially rejected the idea arguing that “to hold Article 3 of Protocol No. 1 to be applicable to supranational representative organs would be to extend the scope of Article 3 beyond what was intended by the drafters of the Convention and beyond the object and purpose of the provision.” The Court did not follow this view. In Matthews v UK [1999], the Grand Chamber delivered a landmark judgment on the relationship of the ECHR with Union law whose principles are applied until this very day. Holding that the Convention is a living instrument, the Court argued that “mere fact that a body was not envisaged by the drafters of the Convention cannot prevent that body from falling within the scope of the Convention. To the extent that Contracting States organise common constitutional or parliamentary structures by international treaties, the Court must take these mutually agreed structural changes into account in interpreting the Convention and its Protocols” (paragraph 39).

10. The 1947 General Agreement on Tariffs and Trade (GATT), which had been signed by several future members of the European Economic Community (EEC) before the EEC’s creation, provides another example. Following the transfer of competences in the area of trade from the national to the EEC level, the EEC took over the position of its member States in the GATT. Other GATT signatories accepted the EEC’s ‘de facto succession’^{^[5]} despite the fact that it never led to a formal amendment of the GATT.

11. A similar reasoning as in those cases could be applied when it comes to the establishment of common structures in the area of criminal law. In the area of its competence the EPPO would be considered as the competent judicial authority that replaces, within a narrowly defined area, the national authorities due to succession. The EPPO may thus be regarded as the legal successor, at least partially,^{^[6]} to the national judicial authorities of the 22 participating States for the so-called ‘PIF crimes’. Such an assumption finds support in article 86 TFEU which States that the EPPO is a Union body which “…exercises the functions of prosecutor in the competent courts of the member States in relation to such offences.”^{^[7]}

12. Neither the wording of article 24 of the 1959 MLA Convention, which does not require judicial authorities to be of a purely national character, nor the Convention’s object and purpose prevents contracting States from changing their declarations and from including an authority like the EPPO as a judicial authority. It is within the discretion of each contracting State to define what it considers to be its own judicial authorities, as the internal structure of its judicial system lies within national sovereignty and was never meant to be affected by the 1959 MLA Convention. The inherent power of each country to transfer some strictly defined judicial competences to a common judicial authority that is shared with other States cannot be considered as being restricted by the Convention. According to its preamble, the object and purpose of the 1959 MLA Convention is the facilitation of mutual assistance in criminal matters. An interpretation which would exclude a common judicial authority such as the EPPO from the scope of the 1959 MLA Convention would limit the Convention’s effectiveness. It would appear to be in the interest of all contracting States if the scope of application of the 1959 MLA Convention will not be reduced if some of them decide to set up a supranational body and to transfer certain competences to it. As the interests of other contracting States are protected by having the possibility to object (see the answer to Question 3), there appears to be no need for a more restricted understanding.

Effects of a declaration in favour of EPPO

13. The Swiss Federal Office of Justice asks whether a declaration under Article 24 of the 1959 MLA Convention would be sufficient to derive rights and obligations for the EPPO under the convention. If so, which rules would apply in case of a violation of the convention, in terms of responsibility, given that the European Union will not be a party to the convention. The Swiss Federal Office of Justice also wants to know whether there have been any precedents for a declaration relating to the EPPO and if such a declaration would create a precedent for other instruments of the Council of Europe.

14. The Swiss authorities rightly point out that a declaration under article 24 of the 1959 MLA Convention would not lead to an accession of the EU to this convention. This does not mean, however, that there will be no redress for violations of the convention or its protocols. The Regulation contains a ‘general regime of liability’ (article 113) which should be seen in conjunction with article 340 of the Treaty on the Functioning of the European Union (TFEU).^{^[8]} Under this regime, the European Union is responsible for any damage caused by it or by its servants in the performance of their duties. However, according to settled case-law of the Court of Justice of the European Union, in order for the European Union to incur non-contractual liability for unlawful conduct, a number of conditions must be satisfied: the conduct must be unlawful, actual damage must have been suffered and there must be a causal link between the conduct and the damage pleaded.^{^[9]} Conduct inconsistent with the MLA Convention and its protocol would probably not be considered “unlawful” as the EU is not party to this convention and the convention’s rules do not form part of the EU’s legal order.^{^[10]} An alleged violation of the 1959 MLA Convention or its protocols may, however, be addressed through diplomatic channels and the CDPC may facilitate a friendly settlement of any difficulties which arise in this context.^{^[11]} Following a declaration under article 24 of the 1959 MLA Convention designating the EPPO as an additional judicial authority, the EU member States participating in the EPPO will remain contracting parties and thus continue to be liable for any violations of the convention attributable to them. Considering that investigation and prosecution measures will as a rule be carried out by a particular EDP, it may be possible to hold the EU member State whose EDP actually handled the case responsible. The European Court of Human Rights held that EU member States’ responsibility continues even after a competence was transferred to an international organisation. ^{^[12]}Finally, evidence obtained in violation of the 1959 MLA Convention or its protocol may ultimately be found to be inadmissible by the competent national courts.

15. There are so far no precedents of introducing a European Union body by means of unilateral declarations as an authority under any of the Council of Europe treaties. The development of EU law has only exceptionally given rise to formal notifications addressed to the Secretary General of the Council of Europe in her capacity as depositary of Council of Europe treaties. Following the introduction of the European arrest warrant,^{^[13]} EU member States notified the Council of Europe that they will henceforth apply the European arrest warrant and the corresponding surrender procedures between EU member States and no longer the European Convention on Extradition and its protocols.^{^[14]} Similar declarations have however not been made following the implementation of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters although this directive replaced, as from 22 May 2017, the corresponding provisions of the 1959 MLA Convention and its protocols (see article 34 (1) (a)).

Binding force and scope of application of the declaration

16. The Swiss Federal Office of Justice asks for clarifications regarding the binding force and scope of application of a declaration relating to the EPPO under article 24 of the 1959 MLA Convention. Specifically, it is asked whether other contracting parties may oppose such a declaration under international law and which procedure would have to be followed by States which would not accept such a declaration as a legal basis for co-operation with the EPPO.

17. Third States are not bound by any obligations under the EPPO regulation, primary EU law or the PIF directive. Third States can therefore not be forced to work with the EPPO. The general rule that a treaty cannot create obligations for third States applies.^{^[15]} Therefore, any form of judicial co-operation of the EPPO with third State authorities will depend on the consent of this State.

18. Any notification to the effect that the EPPO is a competent authority under the 1959 MLA Convention should be as complete as possible, indicating clearly its scope and purpose as well as the intended legal consequences. It would also be important to indicate whether reservations or other declarations made by some of the 22 participating States will apply to the EPPO. It may also be useful to address other issues such as conditions or restrictions on the use of information and evidence or obligations of the requesting party under article 12 of the convention. Information and evidence to be obtained by an MLA request will eventually not remain in the hands of the EPPO but will be introduced in the courts of a member State. The second additional protocol contains certain provisions on investigation measures which may affect the interests not only of the EPPO, but also of the member State of the acting EDP, for example by imposing certain obligations on that State’s judicial authorities (see in particular articles 13, 14, 20 and 23 of the second additional protocol).

19. Confronted with a notification of the EPPO as a new judicial authority, third States can and might simply refuse to co-operate by issuing a counter-declaration. Even though the designation of the EPPO as a new judicial authority cannot be equated to a reservation, other contracting parties will be able to object to the introduction of a new judicial authority which is not a judicial authority of one of the contracting parties. Any such objections that will be addressed to the Secretary General of the Council of Europe will be notified by her under article 30 (c) of the 1959 MLA Convention to the member States of the Council of Europe and other States which have acceded to the convention. However, it would also appear possible that a contracting party simply refuses to execute letters rogatory emanating from the EPPO without having made a formal objection to the designation of the EPPO as a judicial authority.

***

20. It may thus be concluded that a declaration under article 24 of the MLA Convention appears to be legally possible for the purposes of establishing the EPPO as a judicial authority under the 1959 MLA Convention and its protocols. However, other contracting States would have the right to refuse co-operation with the EPPO.

Appendix II: Replies to the PC-OC’s first questionnaire addressed to non-EU member States regarding co-operation with the EPPO under the Convention

During its plenary meeting on 22-23 November 2021, the PC-OC had invited the CDPC to “ask the Committee of Ministers to provide the Committee with a mandate to negotiate “a treaty/agreement between the EU and the Parties to the Convention on the application of the Convention on Mutual Assistance in Criminal Matters and the Additional Protocols thereto for co-operation with the EPPO” (See the list of decisions under item 3.a).

The CDPC considered this invitation during its meeting on 7-9 December 2021 and decided as follows:

- to take note of the conclusions of the PC-OC regarding the need for a binding instrument in the form of an agreement between the EU and the Parties to the European Convention on Mutual Assistance in Criminal Matters on the application of this 1959 Convention and the Additional Protocols thereto for the co-operation with the EPPO;

- to take note with great attention of the information communicated by Mr Klemen Princes (Slovenia), on behalf of the EU, presenting the outcome of the recent COPEN WP where the EU member States concluded that 1) they attach great importance to finding suitable solutions for the co-operation between the EPPO and the non-EU Parties under the 1959 European Convention and its Protocols; 2) welcome all efforts made by the CoE in this regard; 3) EU member States are and remain open to consider any suitable long-term solution, including a self-standing binding instrument; 4) the importance to further explore if and to what extent the unilateral declarations can be considered as an appropriate legal basis and receive any relevant information from the non-EU partners; 5) the EU member States consider that they will not yet be in a position to recommend to the Committee of Ministers of the Council of Europe to agree on a mandate for a self-standing binding instrument, as proposed by PC-OC; 6) following the exchange with non-EU partners, it will be possible to have a clearer picture of the situation, and this will allow to consider any appropriate way forward, to be explored in particular at technical and expert level;

- to note that the subsequent discussion did not allow to clarify sufficiently the position of member States that are non-EU Parties to the 1959 Convention and that further information would be needed;

- to instruct the PC-OC to send out a short questionnaire to non-EU Parties to the 1959 Convention to obtain further clarity about their position regarding co-operation with the EPPO, existing obstacles and possible solutions in time before the next meeting of the PC-OC Mod and report the outcome to the CDPC in view of a decision;

Following these instructions, on 18 January 2022 the Secretariat, in consultation with the Chair and vice-Chair of the PC-OC, sent out the following short questionnaire to non-EU States Parties to the European Convention on Mutual Assistance in Criminal Matters:

QUESTIONS:

1. Is your country in a position to co-operate with the European Public Prosecutor’s Office taking into account the declarations issued by the EU member States to this effect? (an example of such declaration is attached). If this is not the case, please explain why.

2. Would your country be in favor of the negotiation of a treaty/agreement between the EU and the Parties to the Convention on the application of the Convention on Mutual Assistance in Criminal Matters and the Additional Protocols thereto for co-operation with the EPPO? Please comment if this is not the case and/or if you propose an alternative solution.

As of 9 November 2022, 15 States Parties to the European Convention on Mutual Assistance in Criminal Matters which are non-EU member States replied to the questionnaire. The table below was prepared by the Secretariat on the basis of its own interpretation of these replies. It may thus not reflect accurately the positions expressed and is only intended as a tool to help visualise the positions of the delegations. It is followed by the full text of the actual replies received by the Secretariat.

	Possibility to co-operate on the basis of unilateral declarations			Stance towards negotiating a new legal basis
	Can co-operate	Possible limitations / uncertainty	Cannot co-operate	In favour or neutral	No position	Against
Azerbaijan	X			X
Georgia	X			X
Iceland		X		X
Israel	X			X[16]
Republic of Korea			X	X[17]
Moldova	X				X
Liechtenstein			X	X
Montenegro		X			X
Norway		X		X
Russian Federation[18]			X	X
Republic of Serbia			X	X
Switzerland			X	X
Türkiye			X
Ukraine	X			X
United Kingdom	X			X

AZERBAIJAN

1. Azerbaijan will be able to co-operate with EPPO taking into account relevant declarations issued by the EU member-States. In this case there is no need for an additional bilateral document to be signed.

2. Should such proposal come to the attention of the competent authorities we would consider it following domestic procedures.

GEORGIA (updated on 27/09/2022)

1. Georgia fully expresses its readiness to co-operate with the European Public Prosecutor’s Office based on the 1959 Convention and its Protocols subject to the declarations issued by the EU member States to this effect.

2. As it was mentioned above, Georgia expresses its readiness to apply CoE instruments for the co-operation with the EPPO. Therefore, from our perspective, there is no urgent need for us to negotiate a treaty/agreement between the EU and the Parties to the Convention on the application of the Convention on Mutual Assistance in Criminal Matters and the Additional Protocols thereto for co-operation with the EPPO.

ICELAND

1. Iceland wishes to co-operate with the European Public Prosecutor’s Office (EPPO) and will do so upon a request, each request would though have to be reviewed on a case by case basis. Our internal legislation grants the Ministry of Justice the authority to decide in the absence of a treaty to provide assistance to a State. With that being said, the wording of our internal legislation refers to State but not an institution as the EPPO. This has though been broadly interpreted in recent years, but if a request from the EPPO would require a court order it is though some uncertainty on how the Icelandic courts would render their verdict because of the wording of Icelandic legislation regarding mutual legal assistance.

2. Yes, Iceland would not oppose to such negotiation if there are States that need the legal basis of a treaty/agreement to co-operate with the EPPO.

ISRAEL

1. Israel notes that as regards a legal platform for co-operation with the EPPO- such co-operation is possible; however questions regarding the implementation of said co-operation (eg measures ensuring confidentiality of information transmitted to the EPPO, reciprocity, procedures and preservation of information) still require clarification.

2. Israel does not believe, at this stage, that there is a need for an additional treaty; however, as mentioned above, it is important to receive the aforementioned clarifications in order to consider proceeding.

REPUBLIC OF KOREA

1. The EPPO has already established itself as an important institution in Europe, such as successfully investigating, prosecuting and being convicted in the first trial in various corruption cases etc. Respecting the purpose of the establishment of the EPPO and the views of the PC-OD, the ROK hopes to actively co-operate with the EPPO in the future.

2. However, under the Korean domestic MLA law, the mutual legal assistance in criminal matters is only possible with the "State', and the 'European Convention on Mutual Assistance in Criminal Matters' is also targetting the 'State', so for the present, it might be difficult for the ROK to co-operate with the EPPO in the field of MLA.

REPUBLIC OF MOLDOVA

1. The Republic of Moldova, at the moment, is not in position to co-operate with the European Public Prosecutor’s Office taking into account the declarations issued by the EU member States to this effect.

The article 531 of the Criminal Procedure Code of the Republic of Moldova provides that the competent authorities of the Republic of Moldova can co-operate with other countries and international courts. Since EPPO is not a competent authority of a State or international court there is no possibility to co-operate with it.

The General Prosecutor’s Office of the Republic of Moldova sent to the Ministry of Justice, competent authority to initiate legislative proposals, the request to amend the provisions of the Criminal Procedure Code for making such co-operation possible, which were considered appropriate. The parliament decision is waiting for this.

2. At the moment we cannot comment on the matter of the negotiation of a treaty/agreement between the EU and the Parties to the Convention on the application of the Convention on Mutual Assistance in Criminal Matters and the Additional Protocols thereto for co-operation with the EPPO, the question needs to be examined jointly with several national authorities.

The General Prosecutor’s Office of the Republic of Moldova is in the process of negotiation with EPPO of a co-operation agreement, which has to be signed soon.

Additional information received on 22 September 2022:

Due to the fact that on 14.07.2022 the Parliament of the Republic of Moldova has amended the provisions of Article 531 of the Criminal Procedure Code, the competent authorities of the Republic of Moldova are in position to co-operate in the relations of international legal assistance in criminal matters with the specialised bodies and agencies of the European Union, including the EPPO.

Moreover, on 13.07.2022, the General Prosecutor’s Office of the Republic of Moldova have signed with EPPO an Working Agreement on the co-operation between our institutions. The purpose of which is to facilitate judicial co-operation in criminal matters and exchange of information between the Parties.

LIECHTENSTEIN

1. We have already discussed this topic in our office. In our point of view there is no domestic legal basis in the moment to co-operate with EPPO because Liechtenstein is not a EU member State and so EU legislation does not apply. Therefore we prepared a draft to amend our MLA law which would provide a provision for co-operation with EPPO. But actually it is not foreseeable if or when the Government will pass this draft proposal.

2. We would appreciate it if negotiations of a treaty/agreement between the EU and the Parties to the Convention for co-operation with EPPO will be initiated or even discussed more in details in the field of PC-OC.

MONTENEGRO

1. We would like to emphasise that the Ministry of Justice, Human and Minority Rights is in principle of the position that the European Public Prosecutor's Office (EPPO) should be accepted as the competent body of the participating member States in EPPO for implementing international agreements on mutual legal assistance to which Montenegro is a party, together with the Commission towards concluding working agreements with EPPO. More precisely, we have nothing against that, but we need time to gather additional information which is the competence of EPPO and what is its role in relation to the domestic State prosecutor's office. We believe that it is very important to strengthen our relations with European partners as well as control mechanisms in relation to the protection of EU funds, to which Montenegro is also a beneficiary.

2. We would also like to point out that at 11^th meeting of The Sub-Committee on Justice, Freedom and Security we informed the European Commission about our position and asked for help in the form of further co-operation through special meetings in this area.

NORWAY

1. We underline the importance of the EPPO, and our sincere wish to fully being able to co-operate in EPPO-matters.

Our domestic legislation on mutual legal assistance is flexible, and in general does not require basis in an agreement or convention in order for us to be able to assist. In addition, Norway has entered into several agreements on judicial co-operation in criminal matters with the EU.

However, our internal legislation in this field only regulates assistance between States, and not bodies. Currently there is some legal uncertainty as to whether our internal legislation is sufficient with regards to future requests from the EPPO that will require a clear legal basis.

2. If there are States that need the legal basis of a treaty/agreement in this matter, then we have a positive approach to such negotiations.

THE RUSSIAN FEDERATION

1. The Russian Federation is not in a position to co-operate with the European Public Prosecutor’s Office taking into account the declarations issued by the EU member States to this effect. In our view, such unilateral declarations of the EU member States cannot create a sufficient legal basis for this co-operation.

2. The Russian Federation would be in favor of the negotiation of a treaty/agreement between the EU and the Russian Federation, either bilateral or multilateral, on the application of the Convention on Mutual Assistance in Criminal Matters and the Additional Protocols thereto for co-operation with the EPPO. A new Additional Protocol to the 1959 Convention on such co-operation could not be a solution as the EU is not a party to the Convention.

REPUBLIC OF SERBIA

1. The Republic of Serbia is of the opinion that unilateral declarations of the EU member States cannot create a sufficient legal basis for the co-operation with the European Public Prosecutor’s Office. Republic of Serbia does not have a legal basis in its national law that would allow such co-operation bearing in mind that Law on mutual legal assistance in criminal matters („Official Gazette of the RS” No. 20/09) prescribes in the article 3 of the law that mutual legal assistance shall be provided in the proceedings pertaining to the criminal offence which, at the time the assistance is requested, falls within the jurisdiction of the court in the requesting State. Mutual legal assistance shall also be provided in the proceedings initiated before the administrative authorities for the offence punishable under the legislation of the requesting State or the requested State, in case where a decision of an administrative authority may represent the grounds for instituting criminal proceedings.

Law on mutual legal assistance in criminal matters in article 1 prescribes that the law regulates the procedure of providing mutual legal assistance in criminal matters (hereinafter: mutual legal assistance) in cases in which no ratified international agreement exists or certain subject matters are not regulated under it. Bearing in mind that European Union is not a party to the 1959 MLA Convention, this law would apply in MLA cases.

2. In order to provide necessary conditions for bilateral co-operation with EPPO, it is the opinion that is necessary:

- to conclude the bilateral agreement with the European Public Prosecutor's Office. This agreement could be a legal basis for co-operation between Republic of Serbia and the EPPO.

- to negotiate an Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters which allow the EU to become a Party to the Convention.

SWITZERLAND

1. Switzerland has been putting the topic of co-operation with the EPPO on the agenda of the PC-OC for many years. As already explained in its statements, Switzerland is not in a position to co-operate with the EPPO based on the Member States’ declarations. This is due to the fact that first, the declaration of the EU member States is in its opinion not compatible with treaty law and, second, that Switzerland does not have a legal basis in its national law that would allow such co-operation.

Art. 24 of the MLA Convention, as modified by art. 6 of the Second Additional Protocol, foresees that “Any State shall […] define what authorities it will, for the purpose of the Convention, deem judicial authorities […]”. This article has to be interpreted “[…] in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (art. 31 of the Vienna Convention on the Law of Treaties). Switzerland is of the opinion that art. 24 of the MLA Convention, read in relation with art. 1, is to be understood as referring to judicial authorities of the Contracting parties of the MLA Convention. Accordingly, only judicial authorities of the Contracting parties can be notified as judicial authorities in the sense of the Convention.

The EPPO has been instituted by Council Regulation (EU) 2017/1939. This regulation clearly states that the EPPO is a body of the EU with its own legal personality (art. 3). The EU is not a party to the MLA Convention. According to Switzerland’s analysis, therefore, the EPPO cannot be considered a “judicial authority” of a Contracting Party since it is a body of the EU. The EU as well as the DLAPIL consider that the double hatted status of the European Delegated Prosecutors makes them both national as well as European prosecutors and as such they can be considered judicial authorities in the sense of the Convention. Switzerland disagrees with this interpretation and, based on art. 3 of the Council Regulation, views the EPPO in its whole structure – including its decentralised level – as a body of the EU. Therefore, the EU would need to ratify the MLA Convention in order for Switzerland to be able to co-operate with the EPPO based on this instrument.

As underlined in the legal opinion of the DLAPIL, “third States” are not bound by any obligations under the EPPO regulation and thus they “[…] cannot be forced to work with the EPPO”. Judicial co-operation with this body depends on the consent of the State(s). Hence, States can simply refuse the execution of letters rogatory emanating from the EPPO or refuse to co-operate by issuing a declaration. As of today, Switzerland has no legal basis that would allow Swiss authorities to co-operate with the EPPO. Therefore, and in accordance with the legal opinion of the DLAPIL, Switzerland has been refusing the execution of letters rogatory from European delegated prosecutors that it received so far. In parallel, Switzerland has issued a declaration stating that it would not be able to co-operate based on the declarations of the EU member States. This declaration has been transmitted to the General Secretary of the Council of Europe the 27^th of January 2022.

For these reasons, Switzerland is not in a position to co-operate with the EPPO based on the declarations the EU member States.

2. For several years now, Switzerland has been committed to the negotiation of a Council of Europe instrument regulating co-operation with the European Public Prosecutor's Office based on the Convention on Mutual Assistance in Criminal Matters and the Additional Protocol(s) thereto. Switzerland hereby reiterates its willingness to find a multilateral solution for co-operation with the EPPO based on the Convention.

In this context, Switzerland would like to draw attention to the fact that the Committee of Ministers, through the adoption of its terms of reference, has entrusted the PC-OC with the elaboration of a Draft Protocol to the European Convention on Mutual Assistance in Criminal Matters on the relations with the European Public Prosecutor’s Office by the 31^st of December 2023.

TÜRKIYE

1. Respecting to the first question which is “Is your country in a position to co-operate with the European Public Prosecutor’s Office taking into account the declarations issued by the EU member States to this effect? If this is not the case, please explain why.” as you know, the fundamental logic for the legal assistance based on the mentioned convention is that only the governments can be party to the convention and only their designated judicial authorities may exercise judicial acts required by another government.

In accordance with this, domestic law of Türkiye describes mutual legal assistance as the legal actions in criminal matters performed by the judicial authorities of one State on behalf of another. In this context, EPPO which has its individual legal personality and established under the EU structure, can not be considered as a State. Therefore, from our point of view, it can not, by itself be accepted as a State party to the MLA Convention.

2. When it comes to the second question which is “Would your country be in favor of the negotiation of a treaty/agreement between the EU and the Parties to the Convention on the application of the Convention on Mutual Assistance in Criminal Matters and the Additional Protocols thereto for co-operation with the EPPO? Please comment if this is not the case and/or if you propose an alternative solution.” we would like to express our concerns, since Council of Europe MLA mechanism does not give authority to the governments to designate an EU organ as their judicial authority. Furthermore, such declarations could never solve the judicial authority problem in the long term. It is plausible to claim that an unpredictable authority problem may arise in the very near future between the EPPO and State Parties that are not the EU countries.

Another matter that may rise an issue is that since the area of duty of the EPPO is based merely on financial interests of the EU and thus it will be almost always requesting party, how this will ensure mutuality is unclear. In other words, in line with providing/ensuring the reciprocity and/or mutual legal assistance, EPPO's investigation field and its position as a "requesting party" may in almost all circumstances cause hesitations.

To conclude, for integrating EPPO into the MLA mechanism, it may be an option for EPPO to sign individual bilateral agreements with non-EU countries. By doing so, concerns of other non-EU States including Türkiye might be addressed to some extent.

UKRAINE

1. According to Article 541 of the Criminal Procedural Code of Ukraine, international co-operation in criminal proceedings in the form of mutual legal assistance may be carried out with foreign States and international judicial institutions. The CPC of Ukraine provides possibility of co-operation in criminal matters without an international treaty under the principle of reciprocity, but it is not applicable to the EPPO.

To resolve this issue, the Office of the Prosecutor General and the Ministry of Justice of Ukraine consider elaborating of amendments to the Criminal Procedural Code of Ukraine to implement possibility of such co-operation with the EPPO.

At the same time, since the Convention allows to the State Parties to specify the list of their judicial authorities, it seems that the declaration with regard to the EPPO made by Austria and other similar declarations create a ground for co-operation with EPPO under the European Convention on Mutual Assistance in Criminal Matters of 1959 and its Additional Protocols.

Though the Council Regulation (EU) 2017/1939 seems to do not contain provisions concerning the co-operation of the EPPO with the States non-members of the EU, we may assume that the relevant declarations are in compliance the status and competence of the EPPO.

Thus, the Ukrainian Party would consider and execute any EPPO request as a request of a judicial authority of the EU member State when it refers to the declaration of the relevant State and when it is received by the relevant channels.

2. In order to provide necessary conditions for direct co-operation with EPRO, we consider two possibilities:

- to conclude a bilateral treaty between Ukraine and the European Union (within the meaning of § 3 of Article 104 of Council Regulation (EC) № 2017/1939) on co-operation with the European Public Prosecutor's Office. Such agreement will create a legal basis for full-scope co-operation between Ukraine and the EPPO in criminal matters.

- negotiating an Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters which allow the EU to become a Party to the Convention. However, if it is out of competence of the EU to become a party to the international agreements in this field, the co-operation with the EPPO may be differently prescribed by the Additional Protocol to the Convention taking into account the competence of the relevant EU member States.

UNITED KINGDOM

1.The UK appreciates the important work that the EPPO does in investigating and prosecuting crimes against the financial interests of the EU. The UK considers it is able to co-operate with EPPO via the MLA process.

2. The UK is content to co-operate with the EPPO noting the declarations made by EU member States under Article 24 of the Convention which designated the EPPO as a judicial authority for the purposes of issuing requests for mutual assistance and providing assistance for matters within its competence, in accordance with the Convention and its Protocols. However, we note the arguments made in this forum - the PC OC Group - for an agreement between the EU and Parties to the Convention on the application of the Convention and its protocols for co-operation with the EPPO. We have no comments or concerns with this approach to raise at this stage.

Appendix III: Replies to the PC-OC’s second questionnaire on the preferences of States Parties’ to the Convention regarding options to regulate co-operation with the EPPO under the Convention

In accordance with the decisions taken by the PC-OC in November 2022, and in order to obtain a clear picture regarding the preferences of the Parties, delegations of the PC-OC were invited by its Chair to reply to the following question sent on 21 December 2022:

Given past discussions and options considered by the PC-OC as set out in the attached document (PC-OC (2022) 07), if the decision were to be taken to provide a long-term solution for the co-operation with the European Public Prosecutor’s Office (EPPO) under the European Convention on Mutual Assistance in Criminal Matters, with a new Council of Europe instrument setting out an explicit legal basis for this co-operation, which of the following options would be preferable:

1. Amending the MLA Convention to specifically provide for co-operation with the EPPO and accession by the EU;

2. Negotiating a self-standing legal instrument to provide for a legal basis for co-operation with the EPPO.

If neither of these options is acceptable, please elaborate on what would be the preferred alternative.

The following is a compilation of replies received as of 21 February 2023.

* * * * *

Czech Republic

We would prefer negotiating a self-standing legal instrument to provide for a legal basis for co-operation with the EPPO.

It would be a short document and could enter into force after a small number of ratifications. The question is whether such an instrument could be negotiated within the Council of Europe.

Finland

Finland is not in favour neither of Option 1 nor of Option 2. At this point Finland considers that it is not worth to start negotiating an amending protocol to the MLA Convention or a self-standing legal instrument. Preparation of such instruments would require a lot of resources and it is not clear how many States would ratify the future instrument. Instead, we think that it would be better to get more experience about co-operation with EPPO based on unilateral declarations and national laws. We should study more concretely what kind of problems there are in co-operation with EPPO.

Georgia

If the decision were to be taken to provide a long-term solution for the co-operation with the European Public Prosecutor’s Office (EPPO) under the European Convention on Mutual Assistance in Criminal Matters, with a new Council of Europe instrument setting out an explicit legal basis for this co-operation, Georgia would prefer negotiating a self-standing legal instrument.

Germany

In line with the reply which has probably already reached you from the Swedish EU-Council Presidency we welcome the study to assess the feasibility of negotiating a binding legal instrument. As soon as the study is finalised we are ready to discuss the outcome of the study and support a viable way forward based on further discussions on the most appropriate solution.

Greece

The position of Greece is echoed in the common position that the Swedish Presidency submitted in the name and on behalf of the EU member States.

Iceland

Reference is made to Iceland´s earlier reply to the PC-OC on 10 July 2022. As stated there Iceland is willing to co-operate with EPPO and we will not need a special legal instrument to do so. However, we do understand the obstacles other countries are facing in this regard. Therefore, Iceland does not oppose putting in work to secure the legal basis for co-operation with the EPPO and would prefer option C in the document from the CDPC dated 19 December 2022 (option 2 here below), i.e. negotiating a new self-standing legal instrument. This would of course also strengthen the legal basis for Iceland’s co-operation with EPPO and in light of it being the option that would be faster to negotiate it is Iceland’s preferred choice.

Ireland

Ireland considers option 2 – Negotiating a self-standing legal instrument to provide for a legal basis for co-operation with the EPPO – to be preferable at this stage. This option appears to provide a pragmatic solution for facilitating co-operation with EPPO, given that it could be negotiated quickly and enter into force following a small number of ratifications. However, we remain open to considering and supporting any suitable option arising as a result of the study to assess the feasibility of negotiating a binding legal instrument regarding the application of the European Convention on Mutual Assistance in Criminal Matters on the relations with EPPO.

Republic of Korea

Under relevant domestic laws, and according to relevant treaties and conventions to which Korea is a party, Korea is able to seek/provide mutual legal assistance to/from a “country.” Therefore, MLA to/from the EU/EPPO, in principle, would need an amendment to the Convention.

However, Korea does not object to the second option if many of the parties agree to a self-standing instrument, including a form of “agreement.

Latvia

In the opinion of the Competent authority in Latvia, the second proposal should be supported - Negotiations on an independent legal instrument to ensure a legal basis for co-operation with the EPPO, as a new, simple, and understandable model of co-operation is needed, without confusing it with the existing MLA regulation. This solution would be more practical, faster and then simpler from the point of view of interpretation during the application of the new norms. In addition, the development of the regulation should proceed smoothly, which will probably be more difficult by reworking the existing regulation.

Liechtenstein

For Liechtenstein, both option 1 and option 2 would be a viable option. However, for reasons of a faster implementation, we would prefer option 2.

Republic of North Macedonia

Republic of North Macedonia appreciates the consultations and has the opinion that it is crucial to facilitate co-operation with EPPO.

With regards to different options provided by the PC-OC, after careful consideration we believe that second option is better than the first.

It allows faster negotiation and entering into force.

Republic of North Macedonia wants to emphasise that this does not exclude the possibility to co-operate under unilateral declarations made by the EU member States either as an only option or until new legal instrument is negotiated. “

Republic of Moldova

Taking into consideration the fact that the majority of EU member States have made unilateral declarations establishing the EPPO as a national judicial authority, in our opinion there is no need for an additional protocol to the European Convention on Mutual Assistance in Criminal Matters or a new treaty on this subject.

If unilateral declarations are considered not sufficient for co-operation with the EPPO, from our point of view a self-standing legal instrument is more preferable.

Norway

Norway does not strictly need a new legal binding instrument in order to co-operate with the European Prosecutor´s Office (EPPO). However, if a decision were to be taken to provide such a long-term solution for the co-operation with the EPPO under the European Convention on Mutual Legal Assistance, Norway would prefer option 2. This is the option of negotiating a self-standing legal instrument.

The Netherlands

Please be informed that option 2, negotiating a self-standing legal instrument to provide for a legal basis for co-operation with the EPPO, is our preferred option.

Poland

Option C. (a self-standing instrument) seems to be the most effective solution - simplest and relatively quick to implement. Before the new legal instrument enters into force the only possibility for the co-operation with EPPO for some of non EU participants of the Convention is option A. (no new legal instrument) based on unilateral declarations of participating EU member States designating the EPPO as a national judicial authority.

Portugal

The preferred option is negotiating a self-standing legal instrument to provide for a legal basis for co-operation with the EPPO (option 2).

Slovak Republic

Please let me revoke the previous message, the Slovak Republic supports the common response of the EU member States that will be submitted by Sweden as the Presidency of the Council of the European Union.

Sweden (on behalf of the EU member States)

Sweden, as the Presidency of the Council of the European Union, on behalf of the EU member States, submits the following response to the questionnaire sent on 21 December 2022 to the PC-OC delegations of State Parties to the European Convention on Mutual Assistance in Criminal Matters.

The EU member States,

welcome the study to assess the feasibility of negotiating a binding legal instrument regarding the application of the European Convention on Mutual Assistance in Criminal Matters with respect to the European Public Prosecutor’s Office;

are ready to discuss the outcome of the study and consider and support a viable way forward based on further discussions on the most appropriate legal solution.

thank the PC-OC Chair for these questions. They stand at your disposal for any further questions and look forward to the continued discussion.

Switzerland

Switzerland prefers option two, i.e. negotiating a self-standing instrument, as we believe it would be the most straight forward solution and feasible within reasonable time. We further believe that only the EU itself and those State Parties of the MLA Convention in need of an explicit legal basis for the co-operation with EPPO would need to accede to that new instrument.

Of course, option one, amending the MLA Convention, would also be acceptable to Switzerland. We however fear that this process would be more time-consuming and technically as well as politically quite difficult. In any case, an amendment to the Convention would require more time to enter into force than option two.

Türkiye

Türkiye, as a candidate State for the European Union (EU), has been working with EU member States primarily through the Council of Europe Mutual Legal Assistance Convention (MLA Convention) and its additional protocols in criminal matters. We acknowledge the valuable efforts of the European Public Prosecutor's Office (EPPO) in investigating and prosecuting crimes that harm the financial interests of the EU, as well as the work of the PC-OC in facilitating further co-operation with EPPO under the MLA Convention framework.

Considering the recent questionnaire received and the discussions held during PC-OC meetings, as well as the potential technical and legal challenges associated with concluding a new self-standing agreement and drafting a protocol to the MLA Convention, we believe that the most appropriate approach for non-EU member States willing to co-operate with the EPPO is through unilateral declarations made by participating EU member States designating the EPPO as a national judicial authority.

While we recognise that these declarations may not be entirely compatible with treaty law and that contracting States may have the right to refuse co-operation with the EPPO, we view it as the optimal solution for co-operation between EPPO and non-EU member contracting States willing to co-operate. On the other hand, it should be noted that Türkiye currently does not have a legal basis in its national law that would allow such co-operation.

We would like to reiterate our eagerness to review and discuss this matter further in the light of contributions and future platforms. This issue is of great importance to us, and we would like to continue to explore all possible avenues for resolution.

United Kingdom

The UK preference is that we would not be adverse to a standalone agreement/arrangement with the EPPO (option 2 in the commission email from the Secretariat dated 21 December 2022 below, option C in PC OC 2022 (07) paper attached above) rather than any amendments to the 1959 MLA Convention itself.

The UK interprets the existing MLA Convention sufficient to allow for co-operation with the EPPO by virtue of declarations made by EU member States under Article 24 of the Convention designating the EPPO as a judicial authority. We do note however previous arguments made in the forum of the PC OC for an agreement between the EU and State Parties to the Convention on the application of the Convention for co-operation with the EPPO.

Ukraine

We examined the additional Questionnaire, the advantages and disadvantages of all options, foreseen in the document PC-OC (2022) 07 “Co-operation with the EPPO under the European Convention on Mutual Assistance in Criminal Matters: state of discussions and options for a future framework”, and based on this we consider the option of “negotiating a self-standing legal instrument to provide for a legal basis for a co-operation with the EPPO” as a preferable for a long-term solution for a co-operation with the EPPO.

“We also inform that on March 18, 2022 the Working Arrangement on co-operation between the Prosecutor‘s General Office of Ukraine (PGO) and European Public Prosecutor`s Office (EPPO) was concluded, with the purpose to facilitate judicial co-operation in criminal matters and exchange of information, for gathering evidence or obtaining extradition of person sought, as well as for other forms of judicial co-operation.

Please also see the answers of Ukraine on the first Questionnaire on co-operation with the EPPO.

Appendix IV: Legal opinion of DLAPIL on the compatibility of a self-standing legal instrument with the Council of Europe treaty practice

1. The Secretary to the PC-OC requested a legal opinion on the compatibility with the Council of Europe treaty practice of a self-standing agreement concerning co-operation between non-EU States Parties to the European Convention on Mutual Assistance in Criminal Matters (ETS No. 30) and the European Public Prosecutor’s Office (‘EPPO’). A draft agreement on the application of the European Convention on Mutual Assistance in Criminal Matters and the additional Protocols thereto for the co-operation with the EPPO (‘draft agreement’) prepared by the Swiss delegation and revised by the PC-OC Mod at its 33rd meeting (28 February-2 March 2023) was attached.

2. There is no precedent for such an agreement in the Council of Europe treaty practice. Council of Europe treaties are usually amended by additional or amending protocols. At the same time, there are no peremptory norms of international law prohibiting the conclusion of an agreement complementing existing Council of Europe treaties. On the contrary, the Vienna Conventions on the Law of Treaties provides for the possibility to amend and supplement multilateral treaties (see articles 40 and 41 of the 1969 VCLT and articles 39 and 40 of the 1986 VCLT between States and International Organizations or between International Organizations).

3. The question arises how such an agreement would relate to the declarations made by EU member States, stating that the EPPO qualifies as a judicial authority under the 1959 Mutual Assistance Convention and its protocols. In particular, would States be able to provide mutual assistance on the basis of the declarations made - without this new agreement - until the ratification of such an agreement?

4. Furthermore, in the event that such an agreement is concluded, the EU member States would be obliged to withdraw the notifications already made with effect, however, only vis-à-vis the third States (the non-EU States) that have ratified this new agreement. On the one hand, the question could arise as to why the EU member States would be obliged to do so, even though they themselves are not supposed to become party to the new agreement. On the other hand, there is the question of what the EU member States would have to declare in this case. They could not comprehensively withdraw the declarations they have already made, according to which the EPPO is one of their judicial authorities, but only in relation to the third countries that have already ratified the new agreement. All this would certainly not contribute to legal certainty.

5. Another basic problem is that the draft gives the impression that it concerns the entire Union on the EU side, although the EPPO only has powers of intervention in the member States that participate in the establishment of the EPPO (currently 22). In general, the draft agreement leaves the precise competences of the EPPO unclear and ‘postpones’ the clarification to a declaration to be made upon ratification by the EU (art. 6 para. 3). It is not clear what is meant by “extent of its competence” at this point. This presumably covers the substantive competence of the EPPO (art. 22 EPPO Regulation). It is more difficult with the ‘personal’ competence (art. 23 EPPO Regulation), as this in turn partly depends on the law of each EU member State concerned. Moreover, even if the EPPO has competence (see articles 22 and 23 EPPO Regulation), it may not exercise it in certain cases (article 25 (2) and (3) EPPO Regulation). Furthermore, there is the question of intervention competences, which the EPPO in any case only has in the States participating in its establishment, but not in the so-called “non-participating member States”. Moreover, with regard to third States, the problem arises as to what extent the EPPO has “competence” to take investigative measures at the request of a third State and to transmit the results of the investigation to the requesting third State. This is a question of delimitation of competence between EPPO (EU) and the EU member States on whose territory the requested measure would have to be taken. The EPPO Regulation does not provide for such a competence of the EPPO. The draft agreement leaves this question entirely open.

6. In terms of content, article 3 of the draft agreement leaves many questions unanswered or is simply inaccurate. What does article 3 (2) mean, for example, when it stipulates that these terms “in relation to the European Union, be construed as references to the European Union and to the EPPO”? Presumably, what is meant is only such an interpretation in the context of a request that falls under the new agreement. But even then, “in relation to the European Union” gives the impression that the whole Union is meant and not only the Union in the form of the enhanced co-operation under which EPPO was established. And what does “references to the Union” mean? Who is the “judicial authority” or “Ministry of Justice” in the case of the Union?

7. In article 3 (2), it should be made clear for the uninformed reader from a third country that the legal provisions applicable on the part of the Union also include national legal provisions in accordance with the EPPO Regulation, namely those of the member State of the competent European Delegated Prosecutor (‘EDP’) who is determined by the application of the EPPO Regulation in the case of EPPO requests. Again, however, it is not regulated which EDP will be responsible for any incoming requests and thus also which member State law applies (since the EPPO Regulation does not contain any regulations on incoming requests, this question is also not regulated there).

8. In addition, there are special problems which are addressed in the declarations by EU member States, but not in the draft agreement. These concern the provisions of article 11 of the 1959 Convention (transfer of a prisoner for interrogation) and article 33 (2) of the 2nd Additional Protocol (formation of JITs). At least in these two cases, the EPPO cannot act alone in terms of mutual legal assistance law but requires the co-operation of the member State(s) concerned. Therefore, the notifications stipulate that requests must be made via the competent authority of the member State or require its consent.

9. Article 3 also leaves open a whole series of further questions, such as the language in which any requests to the EPPO are to be made. Or whether evidence received by the EDP of a member State in response to a request addressed to a third State may be forwarded within the EPPO (or even the EU in general) (since the EPPO is a ‘single office’) or whether the speciality protection of the 1959 Convention then applies (and the third State has provided evidence in response to a request “to the EU” and not to an EU member State. It remains also unclear to what extent data protection provisions of Convention 108+ shall apply.

10. In summary, unless comprehensively revised, the draft agreement raises more questions than it solves. It may also be questioned why the Council of Europe should engage in this process which concerns primarily the European Union. Alternatively, it would be for the Union itself to prepare and conclude, where necessary, additional agreements with third States. Such agreements could also regulate the applicability of other Council of Europe conventions (e.g. the Budapest Cybercrime or the Money Laundering Conventions) to the co-operation between the EPPO and third States.

Appendix V: Information note provided by the EPPO on its existing co-operation with non-EU member States

[1] This document has been classified restricted until examination by the Committee of Ministers.

[2] In bold the text introduced by the Second Additional Protocol.

[3] Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced co-operation on the establishment of the European Public Prosecutor’s Office.

[4] H.H. Herrnfeld ‘The EPPO’s Hybrid Structure and Legal Framework: Issus of Implementation – A Perspective from Germany’ European Criminal Law Associations’ Forum (eucrim), Issue 2018/2, 117-121.

[5] See CJEU Case C 21-24/72 International Fruit Company ECLI:EU:C:1972:115.

[6] Under the Regulation, the EPPO’s competence is not exclusive, but once the EPPO has initiated proceedings or decided to make use of its right of evocation, it has de facto exclusive competence for the investigation in question, see article 25 of the Regulation.

[7] N Franssen ‘The future judicial co-operation between the EPPO and non participating member States’ 9 New Journal of European Criminal Law (NJECL) 291, 295 (2018).

[8] “The contractual liability of the Union shall be governed by the law applicable to the contract in question.

In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the member States, make good any damage caused by its institutions or by its servants in the performance of their duties.

Notwithstanding the second paragraph, the European Central Bank shall, in accordance with the general principles common to the laws of the member States, make good any damage caused by it or by its servants in the performance of their duties.

The personal liability of its servants towards the Union shall be governed by the provisions laid down in their Staff Regulations or in the Conditions of Employment applicable to them.”

[9] See CJEU, judgment of 9 September 2008, Joined cases C-120/06 P and C-121/06 P, FIAMM and Others v Council and Commission, paragraph 106; EGC, judgment of 11 July 2007, Schneider Electric v Commission, T-351/03, ECR, EU:T:2007:212, paragraph 113.

[10] See, mutatis mutandis, CJEU, judgment of 21 December 2011, C-366/10, Air Transport Association of America and Others v Secretary of State for Energy and Climate Change, ECLI:EU:C:2011:864.

[11] Committee of Ministers Rec(99)20 concerning the friendly settlement of any difficulty that may arise out of the application of the Council of Europe conventions in the penal field (15/09/1999).

[12] Matthews v. UK, judgment of 18 February 1999, [1999] ECHR 12, § 32.

[13] Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member States (2002/584/JHA).

[14] The relevant notifications are available at the Council of Europe's treaty office website.

[15] Article 34 of the 1969 Vienna Convention on the Law of Treaties: “A treaty does not create either obligations or rights for a third State without its consent.”

[16] The Israeli delegation clarified Israel’s position during the 83^rd plenary meeting of the PC-OC (2-4 May 2023) as being neutral regarding this question.

[17] The Korean delegation clarified its position during the 32^nd meeting of the PC-OC Mod (27-29 September 2022) as being in favour of negotiating a new treaty/agreement.

[18] Reply received prior to the cessation of the Council of Europe membership of the Russian Federation.