According to lawyers, there is no reason why the national part of the procedure for appointing European Delegate Prosecutors should not be carried out in the same way as the procedure for appointing national prosecutors, in which the government has greater powers when it comes to the confirmation of candidates.
The European Public Prosecutor’s Office is an independent EU body responsible for investigating, prosecuting and bringing to judgment crimes against the European Union’s financial interests (for example, fraud, corruption, cross-border VAT fraud in excess of 10 million euros). The European Public Prosecutor’s Office undertakes investigations, carries out acts of prosecution and exercises the functions of prosecutor in the competent courts of the participating Member States until the case has been finally disposed of. Currently, 22 EU Member States have joined the European Public Prosecutor’s Office and will officially take up their duties on the 1st of June 2021.
The procedure of appointing two European Delegate Prosecutors from Slovenia has been going on for several months because the candidates proposed for this position by the State Prosecutorial Council, Matej Oštir and Tanja Frank Eler, are not qualified enough, so the government did not appoint them to the position and annulled the procedure. Finland is also in a similar situation.
Why were the national criteria not followed in the appointment process? The appointment of European Delegate Prosecutors is governed by Article 17 of the Regulation 1939/2017 on the European Public Prosecutor’s Office, and the regulation leaves the national part entirely to the Member States. The appointment is regulated in more detail by Article 71.d of the Public Prosecutor’s Office Act. This act does state that the government merely “learns” about the nominated candidates, but as lawyers with international experience have told us, there is no reason why the national part of the procedure for appointing European Delegate Prosecutors should not be carried out in the same way as the procedure for appointing national prosecutors, in which the government has greater powers when it comes to the confirmation of candidates.
An additional argument in favour of this thesis is also the fact that the role of a prosecutor in the Slovenian constitutional system is part of the executive branch and that the system of brakes and balances between the powers of the State Prosecutorial Council and the government is completely constitutionally appropriate. Therefore, the question that arises is why the national provisions were not followed in the case of appointment of the European Delegate Prosecutors, as the final decision is taken by the College of the European Public Prosecutors in any case.