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have exclusive competence to investigate and prosecute EU fraud,
thereby excluding any prosecutorial discretion at national level. In
other words, the EU prosecutor alone will be able to investigate
and prosecute offences without the involvement of Member States
(Nielsen, 2013b). This is problematic given that many offences
affecting the financial interests of the EU are situated at national
level and linked to other types of fraud or criminality (Franssen,
2013). Once created, however, the EPPO would have powers to
search premises, seize objects, and intercept phone conversations.
The image of an EU prosecutor coming to “search people’s homes,
probe their computers, seize objects, intercept telephone
conversations, and freeze financial transactions” (Nielsen, 2014)
raised alarms among national parliaments. There is also fear that
the practice would spill over to other crimes that are by nature
transnational. In that case, there would emerge a continent-wide
criminal justice system. Even the head of the EU’s anti-fraud office
(OLAF) worries that such an expansion of power would prove
likely.
Considering that criminal law is primarily a national
competence, national parliaments were reluctant to support the
Commission’s proposal, pointing out that the Commission had not
adequately considered the option of strengthening existing (e.g.
Eurojust, OLAF) or alternative mechanisms. Stressing that the
Commission has failed to substantiate the need, as well as the
added value of the EPPO, the national parliamentarians argued
that protection of the EU financial interests could be better
obtained by strengthening and deepening existing mechanisms of
cross-border cooperation between criminal justice authorities
(Nielsen, 2013b).
The Commission’s first reaction to this yellow card was to
point out that “it is the Commission that decides if there has been a
yellow card or not and what would be the consequences” (Nielsen,
2013c). Then the Commission decided to dismiss the so-called
yellow card. After replying to national parliaments that “the