COMENTARII CU PRIVIRE LA APLICABILITATEA DISPOZIŢIILOR ART. 104 ALIN. (5) DIN REGULAMENTUL (UE) 2017/1939 ALCONSILIULUI DIN 12 OCTOMBRIE 2017 DE PUNERE ÎN APLICARE A UNEI FORME DE COOPERARE CONSOLIDATE ÎN CEEA CE PRIVEŞTE INSTITUIREA PARCHETULUI EUR
COMMENTS ON THE APPLICABILITY OF THE PROVISIONS OF ART. 104 PAR. (5) OF COUNCIL REGULATION (EU) 2017/1939 OF 12 OCTOBER 2017 IMPLEMENTING AN ENHANCED FORM OF COOPERATION WITH REGARD TO THE ESTABLISHMENT OF THE EUROPEAN PUBLIC PROSECUTOR'S OFFICE (EPP

Summary/Abstract: This paper operates an analysis of the real possibility for the European Delegated Prosecutor to put in practice the dispositions of art. 104 para. (5) from the EPPO Regulation, which sets out the following: ”In the absence of an agreement pursuant to paragraph 3 of this Article or a recognition pursuant to paragraph 4 of this Article, the handling European Delegated Prosecutor, in accordance with Article 13(1), may have recourse to the powers of a national prosecutor of his/her Member State to request legal assistance in criminal matters from authorities of third countries, on the basis of international agreements concluded by that Member State or applicable national law and, where required, through the competent national authorities. In that case, the European Delegated Prosecutor shall inform and where appropriate shall endeavour to obtain consent from the authorities of third countries that the evidence collected on that basis will be used by the EPPO for the purposes of this Regulation. In any case, the third country shall be duly informed that the final recipient of the reply to the request is the EPPO”. At the first reading it seems that such a possibility falls outside the fundamental principle of the international public law, namely” pacta sunt servanda”, because it will put the European Delegated Prosecutor in the awkward situation to ask a non-EU country to provide him/her with mutual legal assistance in a non-national case, but upon the bases of an international agreement between the two counties. After a complete study of the bilateral international agreements between Romania and the non-EU countries, we came to the conclusion that the problem depends firstly on the way the international agreement defines the mutual judicial co-operation, namely if it refers to national cases or to cases defined upon the application of other criteria. As an example, The Bilateral Agreement on Mutual Legal Assistance in Criminal Matters between Romania and Canada establishes that MLA should be awarded if refers to a case built upon an offence that is criminalised by the Romanian or Canadian law. So, the main criterium is not linked to the concept of a national case. If the bilateral agreement follows such a paradigm, there should not be a problem to ask for MLA in the framework of para. (5) of art. 104 EPPO Regulation. The second problem raised by the present paper regards the situation where, after receiving MLA according to the above model, the EPPO Preliminary Chamber refers the case to a European Delegated Prosecutor (EDP) from another Member State that the one to whom the first EDP belongs. Will the court vested with the judgment of the EPPO case will accept evidence obtained in the way described above? The conclusion of the paper is that a general assessment of the text of art. 104 para. (5) of the EPPO Regulation is almost impossible to be operated but instead the evaluation of such a possibility should be done on a case by case basis.

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