The Legality Principle: An Effective Way to Minimise the European Prosecutors’ Influence on Substantive Criminalisation?

This article discusses proposed models for a European Public Prosecutor’s Office with regard to the potential for influence of such an institution on substantive criminalisation - i.e. the way in which a criminal offence is applied in practice. To respect Member States’ sovereignty and to comply with the principle of subsidiarity, such influence of a European Prosecutor is to be avoided. Valuable insights regarding possible controls and limitations of such influence can be drawn from the situation in national legal systems. As contrasting models, the approach of the German system adhering to the legality principle and the English model of discretionary prosecution will be examined. The most important potentials for influence and options for limitation will be shown, especially focusing on the role of prosecutorial dismissals of cases and plea bargaining. It will be shown that the draft proposals for the European Public Prosecutor’s Office have developed in a welcome direction regarding the control of prosecutorial influence on substantive criminalisation.