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Prosecuting EU Financial Crimes: The European Public Prosecutor's Office in Comparison to the US Federal Regime

Published online by Cambridge University Press:  06 March 2019

Carlos Gómez-Jara Díez
Affiliation:
Criminal Law at the Universidad Autónoma de Madrid and practicing lawyer at Corporate Defense, Madrid. Email: cgj@corporatedefense.es
Ester Herlin-Karnell
Affiliation:
EU Constitutional Law and Justice and University Research Chair, VU University of Amsterdam. Email: e.herlinkarnell@vu.nl

Abstract

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Why is the fight against financial crimes such a central task for the EU? The EU has a strong interest to counter financial crimes and fraud against the EU budget as those crimes—so the EU legislator's claim is—hamper the trust in the market and undermine consumer confidence to engage in internal market transactions. In this Article, we aim to discuss the establishment of the European Public Prosecutor Office as a federal agent and the effects of this agent for establishing a robust EU financial crimes regime. Comparisons with the US system of US Attorneys—federal prosecutors—will be drawn to show that this institution has been quite effective at enhancing the protection of US financial market. The Article will then discuss to what extent the EU can, and should, learn from the American experience. We are particularly interested in the strong security focus in the EU and its consequences when it ventures into the area of financial crimes.

Type
Articles
Copyright
Copyright © 2018 by German Law Journal GbR 

References

1 Commission Regulation 2017/1939 of Oct. 12, 2017, Implementing Enhanced Cooperation on the Establishment of the European Public Prosecutor's Office, 2017 O.J. (L 106) 1, 1–71 [hereinafter EPPO].Google Scholar

2 E.g., Delmas-Marty, Mireille, The Implementation of the Corpus Juris in the Member States (John Vervaele ed. 2000).Google Scholar

3 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community art. 12(b), Dec. 13, 2007, 2007 O.J. (C 306) (providing for a competence of national Parliaments to see that the principle of subsidiarity is respected in accordance with Protocol No. 2) [hereinafter Treaty of Lisbon].Google Scholar

4 See e.g., Öberg, Jacob, Limits to Eu Powers: A Case Study of EU Regulatory Criminal Law ch. 7 (2017) (On the adoption of the EPPO Regulation). It should be recalled that before the Lisbon Treaty entered into force, the enhanced cooperation mechanism was almost impossible to use. This was a result of the very high procedural thresholds that were in place, which took the form of restrictions regulating such cooperation.Google Scholar

5 See e.g., Financial Services and Markets Act 2000, c. 8 (Eng.), https://www.legislation.gov.uk/ukpga/2000/8/contents.Google Scholar

6 EPPO, supra note 1, at 1–71.Google Scholar

7 See e.g., Weatherill, Stephen, Law and Values in the European Union (2016); Grainne De Burca and Paul Craig, The Evolution of Eu Law (2011); Takis Tridimas, General Principles of Eu Law (2011).Google Scholar

8 Moloney, Niamh, EU Securities and Financial Markets Regulation (2014).CrossRefGoogle Scholar

9 See e.g., Commission Regulation 596/2014 of April 16, 2014, Market Abuse Regulation and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives, 2014 O.J (L 173).Google Scholar

10 EPPO, supra note 1, at 59.Google Scholar

11 See Delmas-Marty, supra note 2.Google Scholar

12 See e.g., Herlin-Karnell, Ester, White-Collar Crime and European Financial Crises: Getting Tough on EU Market Abuse, 37 Eur. L. Rev. 487 (2012).Google Scholar

13 See contributions by Maria Bergström and Nicholas Ryder in this special issue of the German Law Journal.Google Scholar

15 Financial Action Task Force, International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation (2012), http://www.fatf-gafi.org/media/fatf/documents/recommendations/pdfs/FATF%20Recommendations%202012.pdf.Google Scholar

16 See Díez, Carlos Gómez–Jare, Federal European Criminal Law (2015).Google Scholar

17 See Herlin-Karnell, Ester, Constructing Europe's Area of Freedom, Security, and Justice through the Framework of “Regulation”: A Cascade of Market-Based Challenges in the EU's Fight Against Financial Crime, 16 German L.J. 49, 71 (2015).Google Scholar

18 See e.g., Stefanou, Christoph & Xhanthaki, Helen, Financial Crime in the EU (2005).Google Scholar

19 See Delmas-Marty, supra note 2.Google Scholar

20 See Herlin-Karnell, supra note 12.Google Scholar

21 Directive 2015/849 of the European Parliament and of the Council of 20 May 2015 on the Prevention of the use of the Financial System for the Purposes of Money Laundering or Terrorist Financing, Amending Regulation No 648/2012 of the European Parliament and of the Council, 2015 O.J. (L 141) 73.Google Scholar

22 Commission Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2015/849 on the Prevention of the use of the Financial System for the Purposes of Money Laundering or Terrorist Financing and Amending Directive 2009/101/EC, COM (2016) 185 final (July 5, 2016). Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/EC and 2013/36/EU, 2018 O.J. (L 156) 43–74.Google Scholar

23 See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee of the Regions on The European Agenda on Security, COM (2015) 185 final (Apr. 28, 2015).Google Scholar

24 See Directive 2017/541 on Combating Terrorism and Replacing Council Framework Decision 2002/475/JHA and Amending Council Decision 2005/671/JHA, 2017 O.J. (L 88) 6–21.Google Scholar

25 See id. (as pointed out in the EU Security Agenda).Google Scholar

26 See id., at 4 & 9.Google Scholar

27 E.g., Busuioc, Madalina, Curtin, Deirdre, & Groenleer, Martijn, Agency Growth Between Autonomy and Accountability: the European Police Office as a “living institution,” 18 J. Eur. Pub. Pol'y 848 (2011); See also, Schammo, P, The European Union Securities and Market Authority: Lifting the veil on the Allocation of Powers, 49 Common Mkt. L. Rev. 1879, 1887 (2011).Google Scholar

28 See e.g., Moloney, Niamh, Eu Securities and Financial Markets Regulation (2014).Google Scholar

29 See e.g., Csúri, Aandras, The Proposed European Public Prosecutor's Office—from a Trojan Horse to a White Elephant?, 18 Cambridge Y.B. of Eur. Legal Stud., 122 (2016); Wieczorek, Irene, The EPPO Draft Regulation Passes the First Subsidiarity Test: An Analysis and Interpretation of the European Commission's Hasty Approach to National Parliaments’ Subsidiarity Arguments, 16 German L.J. 1247, 1248 (2016).Google Scholar

30 See e.g., Directive 2015/849, supra note 21.Google Scholar

31 E.g., Weatherill, Stephen, The Limits of Legislative Harmonization Ten Years after Tobacco Advertising, 12 German L.J. 827 (2011).Google Scholar

32 See e.g., Quaglia, Lucia, The Eu and Global Securities Markets Regulation (2014); See also, Ryder and Bergstrom in this special issue.Google Scholar

33 Directive 2017/541 of the European Parliament and of the Council of 15 March 2017 on Combating Terrorism and Replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, 2017 O.J. (L 88) 6–21.Google Scholar

35 Treaty of Lisbon, supra note 3.Google Scholar

36 E.g., Conway, Gerard, The Future of a European Public Prosecutor in the Area of Freedom, Security and Justice, in The European Union as an Area of Freedom, Security and Justice (Maria Fletcher et al. eds., 2016); Öberg, Jacob, Limits to EU Powers: A Case Study of EU Regulatory Criminal Law ch. 7 (2017); The Establishment of a European Public Prosecutor's Office: Between “Better Regulation” and Subsidiarity Concerns, in The Establishment of the European Public Proceutor's Office (EPPO): “State of Play and Perspective” (Willem Geelhoed et al. eds., 2018); Toward a Prosecutor for the European Union (Katlin Ligeti ed., 2012); Fromage, Dianne, The Second Yellow Card on the EPPO Proposal: An Encouraging Development for Member State Parliaments?, 35 Y.B. of Eur. L. 5 (2016).Google Scholar

37 See Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, 2007 O.J. (C 306) protocol 22.Google Scholar

38 As to Sweden's position on not joining the EPPO see Council 2017, EPPO General Approach, point no. 11. On the Dutch position see, Verschuren, Etienne, Nederland doet toch niet mee aan Europees OM, NRC (Nov. 24, 2016), https://www.nrc.nl/nieuws/2016/11/23/nederlanddoet-toch-niet-mee-aan-europees-openbaar-ministerie-a1533218; see also, Wolf, Sofie, The Netherlands will join the European Public Prosecutor's Office, Maastricht University (May 17, 2018), https://www.maastrichtuniversity.nl/blog/2018/05/netherlands-will-join-european-public-prosecutors-office-eppo.Google Scholar

39 See Delmas-Marty, supra note 2.Google Scholar

40 See Green Paper on Criminal Law Protection of the Financial Interests of the Community and the Establishment of a European Prosecutor, COM (2001) 715 final (Dec. 11, 2001).Google Scholar

41 See Case C-68/88, Comm'n v. Greece, 1989 E.C.R. I-2965, §24.Google Scholar

42 See Karnell, Ester Herlin & Ryder, Nic, The Robustness of EU Financial Crimes Legislation: A Critical Review of the EU and UK Anti-Fraud and Money Laundering Scheme, 27 Eur. Bus. L. Rev. 427, 427 (2017).Google Scholar

43 The Member States that communicated its desire to establish this institution were: Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Germany, Finland, France, Greece, Lithuania, Luxembourg, Portugal, Romania, Slovakia, Slovenia, and Spain. In May 2018, the Netherlands notified the Commission of its intention to join. See, European Public Prosecutor's Office, European Commission European Anti-Fraud Office, https://ec.europa.eu/anti-fraud/policy/european_public_prosecutor_en.Google Scholar

44 Commission Staff Working Document Executive Summary of the Impact Assessment Accompanying the document Proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office, at 11, SWD (2013) 274 final (July 17, 2013) [hereinafter Impact Assessment]: Every year at least several hundred million euros are fraudulently diverted from their intended purpose. Only a small fraction of these losses are ever recovered from the criminals. These figures show that the financial interests of the European Union are insufficiently protected from fraud. In fact, the Commission's annual statistics (including those of OLAF) demonstrate that while fraud against the Union's financial interests is pervasive and causes substantial damage every year to the tax payer, national criminal enforcement efforts lag behind. In particular, OLAF's cases which are transferred to national investigation and judicial authorities are not always equally effectively followed-up.Google Scholar

45 Id. at 14.Google Scholar

46 See Proposal for a Council Regulation on the Establishment of the European Public Prosecutor's Office Brussels, COM (2013) 534 final (July 17, 2013) [hereinafter EPPO Regulation].Google Scholar

47 See The European Public Prosecutor's Office: An Extended Arm or a Two-Headed Dragon? (Marta Pawlik et al. eds., 2015).Google Scholar

48 See Weyembergh, Anne & Briere, Chloé, Towards a European Public Prosecutor, Policy paper for the European Parliament (2016) (available at http://www.europarl.europa.eu/RegData/etudes/STUD/2016/571399/IPOL_STU(2016)571399_EN.pdf): The idea of an entirely supranational prosecution service organised at central level and composed of a chief prosecutor and several specialized deputy prosecutors acting throughout MSs’ territories was quickly abandoned. Decentralisation was the preferred option, and discussions focused on defining the most appropriate level. Negotiations have evolved towards ever less centralisation and more decentralisation, from a small hierarchical central office towards a collegial body with various layers. This development raises the question as to whether a sufficient degree of Europeanisation / verticalisation remains, or whether MSs have expanded their control over the EPPO to the extent that it has been deprived of any added value.Google Scholar

49 Including determining the priorities and the investigation and prosecution policy of the EPPO, as well as on general issues arising from individual cases—for example regarding the application of this Regulation—the correct implementation of the investigation and prosecution policy of the EPPO or questions of principle or of significant importance for the development of a coherent investigation and prosecution policy of the EPPO. The decisions of the College on general issues should not affect the duty to investigate and prosecute in accordance with this Regulation and national law. The College should use its best efforts to take decisions by consensus. If such a consensus cannot be reached, decisions should be taken by voting. See EPPO Regulation, supra note 46, at 24.Google Scholar

50 The composition of Permanent Chambers should be determined in accordance with the internal rules of procedure of the EPPO, which should allow—among other things—for a European Prosecutor to be a member of more than one Permanent Chamber where this is appropriate to ensure, to the extent possible, an even workload between individual European Prosecutors. See id. at 25.Google Scholar

51 A European Prosecutor from each Member State should be appointed to the College. They should act as liaison between the central office and the decentralized level in their Member States, facilitating the functioning of the EPPO as a single office. The supervising European Prosecutor should also check any instruction's compliance with national law and inform the Permanent Chamber if the instructions do not do so. See id. Google Scholar

52 The investigations of the EPPO should—as a rule—be carried out by European Delegated Prosecutors in the Member States. They should do so in accordance with this Regulation and, as regards matters not covered by this Regulation, in accordance with national law. European Delegated Prosecutors should carry out their tasks under the supervision of the supervising European Prosecutor and under the direction and instruction of the competent Permanent Chamber.Google Scholar

53 The European Delegated Prosecutors should be an integral part of the EPPO and as such, when investigating and prosecuting offenses within the competence of the EPPO, they should act exclusively on behalf and in the name of the EPPO on the territory of their respective Member State.Google Scholar

54 The European Delegated Prosecutors should be bound to follow instructions coming from the Permanent Chambers and the European Prosecutors.Google Scholar

55 It must bear in mind that a European Prosecutor from each Member State is appointed to the College. Also, nothing precludes a European Prosecutor of the country of origin where the enforcement action is conducted to be a member of the Permanent Chamber instructing the European Delegated Prosecutors in charge of the investigation in that Member State.Google Scholar

56 This is a well-established requirement of the EPPO Regulation: European Delegated Prosecutors should, during their term of office, also be members of the prosecution service of their Member State, namely a prosecutor or member of the judiciary, and should be granted by their Member State at least the same powers as national prosecutors.Google Scholar

57 Impact Assessment, supra note 44: The costs of the different options for establishing the EPPO vary quite considerably. The most expensive option is the centralised one, which assumes that all investigations and prosecutions will be handled at the European level, leading to a higher number of required EU staff. The decentralised option does not entail as much costs, also because use is made to a large extent of resources existing in the Member States, at Eurojust and at OLAF. The costs for the centralised option over twenty years are expected to be over €800 million, whereas the costs for the decentralised option are expected to be about €375 million. These costs include all costs expected to arise from establishing a new European body.Google Scholar

58 Fabio Guiffrida produced a useful chart depicting the basic structure of the EPPO. It clearly shows the horizontal rather than vertical approach of the EPPO and the importance of the national prosecutors in the overall functioning. See Giuffrida, Fabio, The European Public Prosecutor's Office: King Without Kingdom?, CEPS Research Report No. 2017/03, (Feb. 2017), http://aei.pitt.edu/84218/1/RR2017%2D03_EPPO.pdf.Google Scholar

59 See Directive 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the Fight Against Fraud to the Union's Financial Interests by Means of Criminal Law, 2017 O.J. (L 198) 29.Google Scholar

60 “Passive corruption” means the action of a public official who—directly or through an intermediary—requests or receives advantages of any kind, for himself or for a third party, or accepts a promise of such an advantage, to act or to refrain from acting in accordance with his duty or in the exercise of his functions in a way which damages or is likely to damage the Union's financial interests. “Active corruption” means the action of a person who promises, offers or gives, directly or through an intermediary, an advantage of any kind to a public official for himself or for a third party for him to act or to refrain from acting in accordance with his duty or in the exercise of his functions in a way which damages or is likely to damage the Union's financial interests. See id. at art. 4.Google Scholar

61 “Misappropriation” means the action of a public official who is directly—or indirectly—entrusted with the management of funds or assets to commit or disburse funds or appropriate or use assets contrary to the purpose for which they were intended in any way which damages the Union's financial interests.Google Scholar

62 See Directive 2017/1371, supra note 59, at art. 3. In respect of revenue arising from VAT own resources, any act or omission committed in cross-border fraudulent schemes in relation to: (i) The use or presentation of false, incorrect or incomplete VAT-related statements or documents, which has as an effect the diminution of the resources of the Union budget; (ii) non-disclosure of VAT-related information in violation of a specific obligation, with the same effect; or (iii) the presentation of correct VAT-related statements for the purposes of fraudulently disguising the non-payment or wrongful creation of rights to VAT refunds.Google Scholar

63 The European Council may—at the same time or subsequently—adopt a decision a mending paragraph one in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph two as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.Google Scholar

64 See Enforcement Actions, European Securities and Markets Authority, https://www.esma.europa.eu/supervision/enforcement/enforcement-actions.Google Scholar

65 See Case C-270/12, United Kingdom of Great Britain and Norther Ireland v. European Parliament and Council of the European Union, 2014 I.C.J. 562 (Sept. 12).Google Scholar

66 See Case C-537/16, Garlsson Real Estate and Others v. Commissione Nazionale per le Societ à e la Borsa (CONSOB), 2018 I.C.J 193 (Mar. 20).Google Scholar

67 See Joined Cases 596 & 597/16, Enzo Di Puma v. Commissione Nazionale per le Societ à e la Borsa (CONSOB) and Commissione Nazionale per le Societ à e la Borsa (CONSOB), v. Antonio Zecca, 2018 I.C.J. 192 (Mar. 20).Google Scholar

68 Directive 2014/59, of the European Parliament and of the Council of 15 May 2014, Establishing a Framework for the Recovery and Resolution of Credit Institutions and Investment Firms, art. 110, 2014 O.J. (L 173) 190–348.Google Scholar

69 See Regulation 806/2014 of the European Parliament and of the Council of 15 July 2014, establishing Uniform Rules and a Uniform Procedure for the Resolution of Credit Institutions and Certain Investment Firms in the Framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation 1093/2010, 2014 O.J. (L 225) 1–90; Directive 2014/59, of the European Parliament and of the Council of 15 May 2014, Establishing a Framework for the Recovery and Resolution of Credit Institutions and Investment Firms, art. 34, 2014 O.J. (L 173) 190–348.Google Scholar

70 For studies of subsidiarity and EU criminal law, see e.g., Öberg, Jacob, Limits to Eu Powers: A Case Study of EU Regulatory Criminal Law ch. 7 (2017); Mettinen, Samali, EU Criminal Law (2013); Herlin-Karnell, Ester, Subsidiarity in the Area of EU Justice and Home Affairs—A Lost Cause, 15 Eur. L. J. 351 (2009).Google Scholar

71 See Directive (EU) 2017/1371, supra note 59, at 29–41.Google Scholar

72 See Proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union's financial interests by means of criminal law, COM (2012) 363 final (July 11, 2012); See Council Regulation 2988/95, of 18 December 1995 on the protection of the European Communities financial, 1995 O.J. (L 312) (setting out administrative rules for dealing with illegal activities at the expense of the Union's financial interests).Google Scholar

73 See Communication from the Commission to the European Parliament, the European Council and the Council: Better Regulation: Delivering better results for a stronger Union, COM (2016) 615 final (Sept. 14, 2016).Google Scholar

74 See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, COM (2017) 651 final (Oct. 24, 2017).Google Scholar

75 See also, the discussion in Herlin-Karnell, Ester, The Establishment of a European Public Prosecutor's Office: Between ‘Better Regulation’ and Subsidiarity Concerns, in The Establishment of the European Public Proceutor's Office (EPPO): “State of Play and Perspective” (Willem Geelhoed et al. eds., 2018).Google Scholar

76 See Directive 2013/48, of the European Parliament and of the Council of 22 October 2013 on the Right of Access to a Lawyer in Criminal Proceedings and in European Arrest Warrant Proceedings, and on the Right to Have a Third Party Informed Upon Deprivation of Liberty and to Communicate with Third Persons and with Consular Authorities While Deprived of Liberty 2013/48/EU, 2013 O.J. (L 294) 1, 1–12.Google Scholar

77 See Directive 2016/680, of the European Parliament and of the Council of 27 April 2016, on the Protection of Natural Persons with Regard to the Processing of Personal Data by Competent Authorities for the Purposes of the Prevention, Investigation, Detection or Prosecution of Criminal Offenses or the Execution of Criminal Penalties, and on the Free Movement of such Data, and Repealing Council Framework Decision, 2008/977/JHA, 2016 O.J. (L 119) 89–131.Google Scholar

78 See also, discussion in Els de Busser and Anne De Hing's article in this special issue; see, e.g., Case C-293/12, Dig. Rights Ir. v. Minister for Commc'ns, Marine and Nat. Res. & Others, 2014 I.C.J. 238 (April 8); Case C-362/14, Maximillian Schrems v. Data Protection Comm'r, 2015 I.C.J 650 (Oct. 6, 2015).Google Scholar

79 EPPO Regulation, supra note 46, at art. 56–65.Google Scholar

80 Article 65. 1 of the EPPO Regulation.Google Scholar

81 See Carlos Gómez-Jara Díez, Federal European Criminal Law (2015); Willems, Auke, Mutual Trust as a Core Principle of EU Criminal Law: Conceptualizing the Principle with a view to Facilitate Mutual Recognition in Criminal Justice Matters (2017) (unpublished PhD thesis) (on file with Vrije Universiteit Brussel and Université Libre de Bruxelles).Google Scholar

82 U.S. Const. art II.Google Scholar

83 Judiciary Act of 1789, § 35, 1 Stat. 73.Google Scholar

85 See Eisenstein, James, Counsel for the United States: U. S. Attorneys in the Political and Legal Systems 9 (1978).Google Scholar

86 Find Your United States Attorney, Department of Justice, http://www.justice.gov/usao/districts.Google Scholar

87 Organizational Chart, Department of Justice, https://www.justice.gov/criminal/sectionsoffices/chart.Google Scholar

88 For some classic explanations, see Kaplan, John, The Prosecutorial Discretion—a Comment, 60 Nw. U. L. Rev. 174 (1965); LaFave, Wayne, The Prosecutor's Discretion in the United States, 18 Am. J. Comp. L. 532 (1970).Google Scholar

89 Id. at 47.Google Scholar

91 For an introductory view from the Government side, see Gorelick, James & Litman, Harry, Prosecutorial Discretion and the Federalization Debate, 46 Hastings L.J. 967 (1995) (explaining why the principle that the federal courts should never, or even rarely, be able to exercise criminal jurisdiction over areas of criminal law that also fall under the concurrent jurisdiction of the state system is flawed); for a general overview, see Lynch, Gerard E., Our Administrative System of Criminal Justice, 66 Fordham L. Rev. 2117, 2138–2142 (1998); some interesting statistics were provided by Frase, Richard S., The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. Chi. L. Rev. (1980) at 246, 257, 278.Google Scholar

92 Though the piece is more than 30 years old, the work of Vorenberg, James, Decent Restraints in Prosecutorial Power, 94 Harv. L. Rev. 1521, 1559 (1981) is worth revisiting. As he noted at 1554:Google Scholar

93 See U.S. v. Armstrong, 517 U.S. 456 (1996) (explaining the procedural requirements of a selective prosecution claim).Google Scholar

94 Not surprisingly, many consider this threshold to be virtually insurmountable in many cases, leaving prosecutorial discretion effectively unreviewable. Id. at 463–64. See Poulin, Anne Bowen, Prosecutorial Discretion and Selective Prosecution: Enforcing Protection after United States v. Armstrong, 34 Am. Crim. L. Rev. 1081 (1997) (referring to this defense right as “The Disfavored Right”); Sapir, Yaov, Neither Intent nor Impact: A Critique of the Racially Based Selective Prosecution Jurisprudence and a Reform Proposal, 19 Harv. BlackLetter L. J. 127 (2003); McAdams, Richard H., Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi.-Kent L. Rev. 605 (1998).Google Scholar

95 See Richman, Daniel C., Federal Criminal Law, Congressional Delegation, and Enforcement Discretion, 46 UCLA L. REV. 757 (1999) (noting, however, that Congress cannot use many of the tools for monitoring and managing delegated criminal enforcement authority that it can draw on to constrain bureaucratic discretion in other areas).Google Scholar

96 See Heller, Robert, Commentary, Selective Prosecution and the Federalization of Criminal Law: The Need for Meaningful Judicial Review of Prosecutorial Discretion, 145 U. Pa. L. Rev. 1309, 1309–15 (1997) (noting that “[c]oncurrent jurisdiction due to the federalization of criminal law introduces into the criminal justice system a potential for prosecutorial abuse that was not an area of concern when crime was primarily a locally regulated phenomenon”).CrossRefGoogle Scholar

97 See Beale, Sara Sun, Rethinking the Identity and Role of US Attorneys, 6 Ohio St. J. Crim. L. 369 (2009).Google Scholar

98 See Directive 2017/1371, supra note 59, at 72.Google Scholar

99 See Henning, Peter J., Federalism and the Federal Prosecution of State and Local Corruption, 92 Kent. L.J. 1 (2003) (“[s]ince the 1970s, federal prosecutors have been particularly active in prosecuting state and local officials for corruption”). The interesting issue is that, with time, federal prosecutors have prosecuted state and local officials even if no federal funds were involved; see Peter J. Henning, Federalism and the Federal Prosecution of State and Local Corruption, 92 KENT. L.J. 1, 2 (2003) (“[d]o federal prosecutors invade an area traditionally reserved to the states by applying federal statutes to local corruption that does not implicate the exercise of any direct federal power or the misuse of federal funds?”). A similar trend could take place in the EU given the widespread consensus against corruption and the perceived inaction by national prosecutors in some instances.Google Scholar

101 See Directive 2013/48/EU, on the Right of Access to a Lawyer in Criminal Proceedings and on the Right to Communicate Upon Arrest, 2013 O.J. (L 294) 1–12.Google Scholar

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