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The EPPO in Bulgaria: another brick in the wall?

On Friday, September 10, 2021 Bulgaria vied to try again to fill its outsized quota of Delegated Prosecutors in the European Public Prosecutor Office (EPPO). More than half of the first batch nominated in February 2021 were rejected by the EPPO, in what became another episode in Sofia’s endless anti-corruption ordeal.

The European Public Prosecutor’s Office (EPPO) is an autonomous public prosecution service set up by the EU. Bulgaria and most of the other EU member states signed up to the EPPO, while Hungary, Poland, Ireland, Sweden and Denmark did not. It is the only EU institution authorized to investigate and prosecute financial crimes such as fraud, corruption, or money laundering at EU level. Bulgaria wanted to show it is a stellar EU performer in anti-corruption. But the process of setting up the EPPO in the country exposed deep seated institutional deficits hinting at state capture.

Previously, only the national authorities of the Member States could investigate crimes even at EU level. This situation entailed two main problems: firstly, national prosecutors could not act in other Member States, which made coordinated action in cases involving several EU countries difficult; and secondly, Member States with problems in the application of the rule of law, such as Bulgaria, were more exposed to these financial crimes.

The EPPO was created to address these shortcomings and to coordinate efforts against financial crime at the EU level. The objective of the EPPO is to investigate and prosecute financial crime affecting the EU budget. This includes fraud, with a particular focus on cross-border VAT fraud; corruption; misappropriation of EU fund and assets; and money laundering and organized crime. These crimes have resulted in the loss of hundreds of millions of euros of EU funds per year: for example, through cross-border VAT fraud alone, the EU citizens lose around 50 billion euro per year.

The EPPO in Bulgaria

The EPPO has two levels: a supranational and centralized in Luxembourg, and one decentralized at the national level. The central office coordinates and supervises the efforts of the European Delegated Prosecutors based at the national level. The Delegated Prosecutors are the ones who initiate particular investigations and prosecutions. These Delegated Prosecutors are answerable only to the EPPO and not to the national authorities, which firmly ensures their independence. In the case of Bulgaria, the EPPO should have 10 Delegated Prosecutors in the field to investigate cases in the country. But the selection process has gone rogue putting in question Sofia’s willingness to fight corruption.

The EPPO only requires a minimum of 2 Delegated Prosecutors per country. But Bulgaria, willing to show its desire to fight graft and corruption, proposed to have 10, because it argued that only two would not be enough to handle the number of EU-related financial crimes in the country. So Bulgaria is the EU member state with the highest number of EPPO Delegated Prosecutors per capita. Only Germany and Italy have more Delegated Prosecutors.

However, the selection of these Delegated Prosecutors has been a source of tension between the EPPO and Bulgaria. The Prosecutors’ College in Bulgaria proposed several candidates for these positions, but most of them have been rejected by the EPPO. Bulgaria currently has only 4 of its 10 Delegated Prosecutors. Several Bulgarian candidates were rejected for not meeting the minimum requirements for the position. For example, some of them had no experience in criminal-related prosecutions.

The EPPO’s chief visit

In June, the EU Chief Prosecutor Laura Kövesi visited Bulgaria, on her first official trip as head of the EPPO. One of Kövesi’s main goals was to unblock the appointment of the 6 remaining Delegated Prosecutors in Bulgaria. After the EPPO rejected some of the proposed candidates, the Prosecutors’ College of the Supreme Judicial Council in Bulgaria did not submit new names to fill the remaining positions. This was done in violation of the rules of the Prosecutors’ College for the election of Delegated Prosecutors, which state that in case of rejection of a candidate by the EPPO the next name on the list of candidates of the Prosecutors’ College shall be proposed. There were more than 30 candidates on this list, but after the 6 rejections by the EPPO none of the remaining candidates were offered as an alternative, as some of them were clearly not deemed “convenient” enough. In fact, disregarding its own rules, the Prosecutors’ College decided to reopen the nomination procedure.  

The College is chaired by the Bulgarian Prosecutor General. Large demonstrations against the Prosecutor General began in the country last year, as he is seen not just as inactive but also, by some, as facilitator of high-level corruption. He has largely disregarded large-scale corruption scandals reported by the media and civil society groups. When Kövesi met with him on her visit to Bulgaria, there were protesters outside the Palace of Justice in Sofia. Anti-corruption activists view optimistically the EPPO and, in particular, Kövesi, who has extensive experience in fighting corruption in Romania, as a way to foster reforms in the Bulgarian judicial system, which is largely seen as captured by interest groups.

What’s next

The Prosecutors’ College in Bulgaria should promptly present suitable candidates to fill the remaining 6 positions of Delegated Prosecutors in Bulgaria. It should do so through a more transparent procedure that ensures that the nominations meet the requirements of the EPPO.

Also, the appropriateness of having the Prosecutors’ College as the nominating body for the EPPO Delegated Prosecutors should be further discussed, and alternatives such as having the Supreme Judicial Council as the nominating body should be considered. The EPPO and the European Parliament should draw attention to this (systemic) problem in some member-states and press for an effective and transparent solution.

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