In Delphi, on the subject of term renewals, Laura Covessi insisted that Greek law is a… formality.

As part of her deliberate vagueness – either to keep everyone happy or to achieve as much voluntary (I stress) participation as possible from member states and incorporation of her regulations into national laws – the EU adopted on 12 October 2017 Regulation 2017/1939 establishing the European Public Prosecutor’s Office.

This Regulation is detailed with regard to the appointment of European Public Prosecutors, but it conspicuously omits reference to how the terms of office of prosecutors are renewed. This is such a glaring omission that it leads to the self-evident conclusion that renewal is a new appointment. Despite the fact that it is not a question of persons – as it is provided that European Public Prosecutors receive instructions from the European Public Prosecutor General (thus retaining a different status from their other colleagues) – and despite the fact that there are other worthy prosecutors to serve in and contribute from these positions, it is worth seeing what both the European Regulation and the Greek law by which the European Public Prosecutor’s Office was adopted provide.

Article 17 of the European Regulation, on the appointment and dismissal of European Public Prosecutors, states:

1. On the proposal of the European Public Prosecutor(s), the collegiate body shall appoint the European Public Prosecutor(s) proposed by the Member States. The collegial body may reject a person nominated if he or she does not meet the criteria set out in paragraph

2. The term of office of the European Public Prosecutors is five years and may be renewed. (ed: “may”, but it is not mandatory, nor is it stated how).

3. European Public Prosecutor(s) from the moment of their appointment as European Public Prosecutor(s) until their termination of office shall be active members of the prosecuting authority or judiciary of the respective Member State(s) that nominated them. They shall offer guarantees of independence and shall have the necessary qualifications and relevant practical experience in their national legal system.

4. The collegial body shall remove a European Public Prosecutor if it finds that he/she no longer fulfils the requirements of paragraph 2 or is no longer able to perform his/her duties or has been found guilty of serious misconduct.

5. If a Member State decides to remove from office or to initiate disciplinary proceedings against a national prosecutor who has been appointed European Public Prosecutor for reasons unrelated to his/her responsibilities under this Regulation, it shall inform the European Public Prosecutor General before acting. A Member State may not suspend a European Public Prosecutor or initiate disciplinary proceedings against a European Public Prosecutor for reasons related to his or her responsibilities under this Regulation without the consent of the European Public Prosecutor General. If the European Public Prosecutor General does not consent, the Member State concerned may request the collegiate body to reconsider the matter.
6. If a European Public Prosecutor retires, if his/her services are no longer required for the performance of the European Public Prosecutor’s duties or if he/she resigns or leaves his/her post for any other reason, the Member State concerned shall immediately inform the European Public Prosecutor(s) and, if necessary, propose another prosecutor to appoint a new European Public Prosecutor in accordance with paragraph 1.

The deliberate ambiguity

Obviously, cunningly, and while all the above details everything, there is not a single article on how to renew the mandate of European Public Prosecutors. Thus – and quite rightly – Greece interpreted the omission as a self-evident repetition of the procedure. Otherwise something had to be written somewhere. And, furthermore, Greece could not accept the abolition of a historical institution with a 120-year life, such as the Supreme Judicial Council.

For similar reasons, countries like Ireland and Denmark did not join the European Public Prosecutor’s Office – without their membership of the EU being compromised by this decision. So when it comes to renewal of terms of office, the Member State either reapplies for the same prosecutor or proposes another person.

The European Public Prosecutor General submits his or her proposal to the College. And the College evaluates the criteria and decides. But on the persons that the member state proposes, not on the previous ones who may no longer be on the list. Greek law is absolutely clear As far as Greek legislation is concerned, Law 4786/2021 (GG 43/A/23-3-2021) is clear.

According to Article 5 on the selection of candidates for the post of European Public Prosecutor, the following applies:

1. The selection of the three (3) proposed candidates for appointment to the post of European Public Prosecutor, referred to in para. 1 of Article 16 of Regulation 2017/1939, L 283, shall be carried out by the Supreme Judicial Council for Civil and Criminal Justice, in accordance with the procedure laid down in Articles 68, 78 and 79 of the Code on the Organisation of Courts and the Status of Judicial Officers (Law 1756/1988, A’ 35).

2. The prosecutor of the Supreme Court, six (6) months before the expiry of the term of office of the European Public Prosecutor and immediately upon being informed that the term of office of the European Public Prosecutor will expire prematurely for any reason or will not be extended, shall set a deadline of twenty (20) days for submission, in electronic or paper form, of the applications of the interested parties, together with a curriculum vitae and a file of supporting documents, posts the invitation on the website of the Prosecutor’s Office of the Supreme Court and simultaneously communicates it in writing to the directors of the Prosecutors’ Offices of the Courts of Appeal and the First Instance of the Territory, for the information of their subordinates.

3. The Supreme Judicial Council, after examining the supporting documents and the individual files of the candidates, shall invite the candidates who meet the formal qualifications to an interview by means of a written individual invitation, which shall be served on them by the director of the prosecutor’s office where they serve. The interview may also be conducted by videoconference. The High Judicial Council shall also decide by teleconference and shall determine the order of the successful candidates. The decision may be appealed against before the Plenary of the Supreme Court, in accordance with the procedure laid down in Articles 68 and 79 of the Code on the Organisation of Courts and the Status of Judicial Officers.

4. After the completion of the procedure under paras. 1 to 3, the decision of the Supreme Judicial Council and, if deemed necessary by the selection committee referred to in para. 3 of article 14 of Regulation 2017/1937, the application together with the candidature file of each selected person shall be forwarded by the Minister of Justice to the aforementioned Committee, in order to follow the selection and appointment process of the European Public Prosecutor, for a non-renewable term of six (6) years, which may be extended up to three (3) years, in accordance with paragraphs. 2 and 3 of Article 16 of Regulation 2017/1939. The European Public Prosecutor shall be appointed as a temporary official, in accordance with paragraph. 1 of Article 96 of the above Regulation. In Article 7, on powers and hierarchical dependence, it is stated that the European Public Prosecutors are an integral part of the European Public Prosecutor’s Office and in the exercise of their powers follow the general and specific directions, instructions and orders, as appropriate, of the European Public Prosecutor’s Collegial Body, the Permanent Division of the European Public Prosecutor’s Office responsible for the case and the supervising European Public Prosecutor.

The same procedure shall apply to renewal in Article 9 par. 1 on the selection of candidates for these posts states:

1. The selection of candidates for appointment as European Public Prosecutors shall be carried out by the Supreme Judicial Council for Civil and Criminal Justice, in accordance with the procedure laid down in Articles 49, 50 and 51 of the Code on the Organisation of Courts and the Status of Judicial Officers (Law 1756/1988, A:35).

Paragraph 6 of the same article provides as follows:

a. Full-time European Public Prosecutors, immediately after their appointment, shall be transferred or seconded and placed, in accordance with Articles 49, 50 and 51 of the Code on the Organisation of Courts and the Status of Judicial Officers, in the Office of European Public Prosecutors, until their term of office expires. Their entry into office shall be confirmed by a report. In the event of renewal of their term of office, the same procedure shall apply.

b. In the case of part-time European Public Prosecutors, immediately after their appointment, the prosecutors of the first instance who do not serve in the Athens Prosecutor’s Office of the First Instance and the second degree prosecutors who do not serve in the Athens Prosecutor’s Office of the Appeals Court, shall be transferred or seconded and assigned, in accordance with Articles 49, 50 and 51 of the Code on the Organisation of Courts and the Status of Judicial Officers, to the abovementioned services, respectively, even as supernumeraries, to perform their duties as national prosecutors on a part-time basis.

Also, they shall be assigned to the Office of European Public Prosecutors for the parallel exercise of their functions as European Public Prosecutors until the expiry of their term of office. Similarly, the European Public Prosecutors already serving in the above prosecutor’s offices and the Deputy Public Prosecutors of the Supreme Court shall be assigned to the Office of the European Public Prosecutor for the parallel exercise of their functions.

The assumption of duties in the above Office shall be confirmed by a report. In case of renewal of their term of office, the same procedure is applied.

It’s the… way

Therefore, Greek law is clear. Everything goes through the Supreme Judicial Council. In Delphi, on the subject of term renewals, Kovesi insisted that Greek law is a… formal process. As he said, “in Greece, because of the way the European Public Prosecutor’s Office law was adopted, there is now this administrative stage. To me it is very clear. If someone interprets it differently, there is the European Court of Justice!

It is the epitome of contempt for the separation of powers: Parliament passes a law that is not open to any interpretation, but it can interpret it as an … administrative stage.

From her point of view, understandable. What is surprising is that some here in Greece believe that the legislature passes laws for the fun of it, which anyone can shred.

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