On 26 October 2023, TRACFIN, the French financial intelligence unit responsible for the fight against clandestine financial circuits, money laundering and the financing of terrorism,[1] and the European Public Prosecutor’s Office (hereinafter the “EPPO”), the independent public prosecutor’s office of the European Union responsible for investigating, prosecuting and bringing to judgment crimes against the financial interests of the European Union,[2] entered into a working arrangement (hereinafter the “Working Arrangement”).

The purpose of this Working Arrangement, which entered into force on the day it was signed,[3] is to provide a structured and operational framework for facilitating cooperation between the EPPO and TRACFIN (I), and to facilitate the exchange of information between them as well as streamline the analytical support that TRACFIN can provide to the EPPO (II).[4]

I. The Working Arrangement is part of a cooperative approach, key to the proper functioning of TRACFIN and the European Public Prosecutor’s Office

Council Regulation (EU) 2017/1939 of 12 October 2017 (hereinafter the “Regulation”), which created the EPPO, made cooperation one of the key principles of its functioning and operations. This principle is, moreover, at the origin of its creation as it is the result of the implementation of the legislative procedure of enhanced cooperation by several Member States.[5]

Based on the principle of sincere cooperation set out in Article 4 of the Treaty on European Union (TEU),[6] the recitals of the Regulation provide that the EPPO on the one hand and the competent national authorities[7] and the relevant institutions, bodies, offices and agencies of the Union such as Eurojust, Europol and OLAF[8] on the other support each other in their investigations and prosecutions and inform each other.

In line with this objective, the Regulation provides, for example, that the competent national authorities shall actively assist and support the investigations and prosecutions of the EPPO[9] and inform it of investigations in respect of which the EPPO could exercise its competence, as well as, like the institutions, bodies, offices and agencies of the Union, of criminal conduct in respect of which the EPPO could also exercise its jurisdiction.[10] It adds that, conversely, the EPPO shall inform the competent national authorities of potential criminal offences outside of its scope of competence.[11]

In addition, the Regulation states that the EPPO may establish and maintain cooperative relations with institutions, bodies, offices and agencies of the Union, national authorities of Member States not participating in enhanced cooperation or of third countries and international organizations, as well as exchanging information directly with them. To this end, the Regulation provides that the EPPO may conclude working arrangements.[12]

Pursuant to this prerogative, the EPPO has entered into numerous working arrangements, not only with Europol, Eurojust and OLAF, but also with national authorities such as the Hungarian and Albanian Public Prosecutor’s Offices and the National Antimafia and Counter Terrorism Directorate of Italy, in addition to the recent agreement with TRACFIN.

II. The Working Arrangement establishes a privileged communication framework between TRACFIN and the European Public Prosecutor’s Office

The main purpose of the Working Arrangement is to formalize several channels for exchanging information between TRACFIN and the EPPO, in addition to those already provided for by the Regulation and the Monetary and Financial Code, to make communication between them more secure, efficient and smooth and thus make the fight against crimes against the European Union’s economic interests more effective.[13]

However, it introduces safeguards by specifying that the information and documents communicated will be confidential and covered by professional secrecy, and that they may not be transferred to a third party, in a context other than that for which they were originally provided, without the consent of the party disclosing them.[14]

A. TRACFIN can provide analytical support to the European Public Prosecutor’s Office

The Working Arrangement provides that the EPPO may request, by means of a motivated and contextualized act,[15] information and documents from TRACFIN regarding suspicious transactions or activities, as well as the result of a specific analysis relevant to its activity.[16]

TRACFIN may refuse to answer such a request, duly justifying its decision, if there are objective reasons to believe that an answer would have a negative impact on ongoing investigations or analyses or, in exceptional circumstances, if it would be manifestly disproportionate in relation to the legitimate interests of a natural or legal person or would not be relevant to the intended purposes.[17]

However, if TRACFIN agrees to answer such a request, it must do so in a timely manner and provide all the relevant information at its disposal, including information obtained from financial intelligence units in other Member States, provided it has obtained their prior consent.[18] If the information requested is connected to an investigation carried out by a national judicial authority or investigative authority, TRACFIN must inform that authority if the request comes from the EPPO and vice versa, unless the said authority or the EPPO request not to do so.[19]

The EPPO must be careful to protect the confidentiality of the information it receives and not disclose or forward it to other authorities without TRACFIN’s authorization and must use it only for the purposes for which it was requested, subject to the possibility of reporting potentially criminal acts to judicial authorities.[20]

B. TRACFIN and the European Public Prosecutor’s Office can provide each other with information on their investigations

The Working Arrangement provides that European Delegated Prosecutors in France can transmit directly to TRACFIN any information collected during an investigation led by the EPPO and necessary for the accomplishment of its missions, pursuant to Article 561-27 of the Monetary and Financial Code, which already authorizes TRACFIN to receive such information from certain public authorities and to access certain public files.[21]

Similarly, it is provided that TRACFIN can transmit directly to the European Delegated Prosecutors in France any information collected during an investigation and necessary for the accomplishment of its missions, in application of articles 561-30-1 and 561-31 of the Monetary and Financial Code, which already authorize TRACFIN to inform the Public Prosecutor of potentially criminal conducts and to transmit information to certain public authorities, and of article 24(1) of the Regulation, which requires TRACFIN to report without undue delay to the EPPO any criminal conduct in respect of which it could exercise its competence.[22]

In addition, the Working Arrangement enables TRACFIN and the EPPO to exchange strategic and non-operational information, such as typologies and challenges, in areas within their competence.[23]

C. The European Public Prosecutor’s Office can inform TRACFIN of suspicious transactions that it considers should be suspended

Among the powers granted to TRACFIN is that of objecting to the execution of a transaction that has not yet been carried out or to any other transaction linked to the first, which then entails a postponement of the execution of these transactions and a possible provisional sequestration of the funds, accounts or securities concerned.[24]

In this respect, the Working Arrangement provides that the European Prosecutor or any European Delegated Prosecutor acting in France may inform TRACFIN of suspicious transactions or any other operations related to such transactions for which the EPPO considers, in the light of his investigations, that they should be suspended.[25]

TRACFIN must then inform the EPPO (i) if it denies the suspension of a suspicious transaction, (ii) if it knows that the suspicious transaction designated by the EPPO is connected to an investigation carried out by a national judicial authority, unless the latter request it not to do so, and (iii) if it intends to suspend a suspicious transaction at the request of a national authority and this transaction is connected to an investigation carried out by the EPPO.[26]