PhD student: Mr K.H.P. Bovend'Eerdt

Promotors: M. Luchtman, J. Vervaele

Duration: 1/9/2016 - 31/8/2020

PhD defence: Utrecht, 30/6/2022

Abstract:

Enforcement of EU law is, in principle, indirect. Investigation, prosecution and sanctioning of infringements of Union law is done by Member States. This indirect model of enforcement no longer holds in all areas of Union activity. One such area is the protection of the financial interests of the Union (PIF). Investigative competences and the power to refer cases for further prosecution have been elevated (i.e., verticalised) to OLAF and Eurojust: supranational law enforcement authorities. While these authorities wield powers of direct enforcement, the exercise of these powers is nevertheless strongly linked to and embedded in the Member State. Member State law dictates how OLAFs and Eurojusts powers can be exercised and the safeguards and fundamental rights these authorities must respect in the process thereof. Within the confines of the nation-state, domestic fundamental rights protection prevents arbitrary interferences with the fundamental rights of the persons subjected to the powers of OLAF and Eurojust. The operational remit of these authorities is not limited to the nation-state however: they operate transnationally. While Member States all uphold fundamental rights, margins of appreciation allow them to do so differently. As lacunae, contradictions and differences exist in how Member States organize fundamental rights protection, OLAF and Eurojust can deliberately circumvent safeguards in Member States. OLAF and Eurojust operate within discretionary margins which allow them, for instance, to gather evidence in one Member State, in accordance with the law of that Member State, and introduce that evidence in a trial in another Member State whose laws prohibit the gathering of evidence in such a fashion. The research problem this PhD occupies itself with is that, in the absence of a common code of procedure, OLAF and Eurojust operate on the basis of discretions. These discretions allow for forum shopping, circumventing safeguards put in place on the national level to protect against arbitrary interferences with fundamental rights of the persons involved. National protection of fundamental rights cannot adequately protect the fundamental rights of persons subjected to transnational law enforcement. It is unclear by whom and on what level fundamental rights should be protected in a transnational law enforcement area.