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Procedure to appoint european delegated prosecutors - additional information

The Government of the Republic of Slovenia has reached all the decisions regarding the appointment of European Delegated Prosecutors from Slovenia within its legal powers and the national part of the appointment procedure prescribed by law.

The Government will continue its endeavours to achieve a swift and successful appointment procedure. The recent increasingly frequent statements and calls from the European Commission, as well as from other European and national organisations and professional associations, cannot and should not influence the decision-making process on these important personnel decisions in a way that would be contrary to the applicable European or national legislation.

In accordance with the Council Regulation, the entire procedure to appoint the two European Delegated Prosecutors will only be successfully completed once the European part of the procedure has been completed, i.e. when on the proposal of the European Chief Prosecutor, the College of European Prosecutors appoints two European Delegated Prosecutors, whose independence is beyond doubt and who possess the necessary qualifications and relevant practical experience of Slovenian legal system.

The Government of the Republic of Slovenia is aware of the difficulties that past governments have had in implementing the European part of the procedures for appointing the European Union's judiciary. This has resulted in a number of unsuccessful hearings of Slovenian candidates for the position of judge at the Court of Justice of the European Union before the Article 255 TFEU Panel. Nominating candidates in a consecutive manner has de facto considerably slowed down procedures to appoint these judges.

In view of the above, the Government welcomes the selection procedure for the European Prosecutor which was based on the parallel nomination of candidates, so that EU Member States were obliged to submit a list of three candidates to the competent Panel from the outset. The Slovenian State Prosecution Service Act from 2019 provides that a public call for candidates to submit their applications for European Delegated Prosecutors shall be deemed successful only if it enables the State Prosecutorial Council to draw up a list of three times as many candidates as the number of vacancies. The application of this rule seems reasonable to the Government, both in terms of emphasising the requirement of the professional competence of the European Delegated Prosecutor and in terms of procedural efficiency. The statutory presumption of an unsuccessful call allows the Ministry of Justice to repeat the call for applications as soon as possible if the first call for applications does not lead to a legally effective proposal due to a lack of a sufficient number of professionally suitable candidates. Therefore, if a public call does not meet the legally required criterion of an adequate number of qualified candidates, the public call is considered unsuccessful according to the law, which obliges the Ministry of Justice to issue a new call.

Taking the above into account, it was already evident from the title of the Government materials submitted by the Ministry of Justice to the government procedure after the first public call that the State Prosecutorial Council had not provided three times the number of professionally qualified candidates, despite the express statutory provision to do so. In the light of the express statutory provision, the call for applications for the appointment of two European Delegated Prosecutors was itself unsuccessful. The State Prosecutorial Council’s proposal for the appointment of two European Delegated Prosecutors prepared on the basis of the public call therefore had no valid legal effects and could not be submitted to the European Public Prosecutor’s Office. The Government therefore decided not to take note of the proposal put forward by the State Prosecutorial Council. In accordance with their internal working arrangement, the Government notified the Ministry of Justice of its decision, requiring it to carry out a new public call.

When the initial phases of the procedure to appoint European Delegated Prosecutors are lawfully conducted by those responsible, the Government will complete its part of the task within its powers, taking note of the proposed list of candidates for the two positions of European Delegated Prosecutor.

The described procedure to appoint two European Delegated Prosecutors, however, should not be confused with the administrative dispute initiated by prosecutors Tanja Frank Eler and Matej Oštir against the Government’s decision not to take note of the legally ineffective proposal of the State Prosecutorial Council. This separate procedure ended with a judgment by which the Administrative Court annulled the relevant Government decision, returning the case to the Government for new adjudication. However, by its very nature, this separate procedure can no longer be restored, as the Ministry of Justice published a new public call in July 2021 to replace the first one. According to their own statements, the plaintiffs in the administrative dispute also applied to this repeated call.

As the first public call, which was unsuccessful according to the law, was consumed by the publication of the second public call, the operative part of the Administrative Court’s judgment requiring the Government to conduct a repeat procedure to issue a decision on not taking note of the legally ineffective proposal of the State Prosecutorial Council cannot be executed. The aim of the Administrative Court, if it wants the entire procedure to appoint European Delegated Prosecutors to be repeated, can be achieved with the publication of a new public call, which the Government has already required the Ministry of Justice to do. Furthermore, the Government will respect the reasoning of the Administrative Court, which recognised the Government’s active role in the procedure to appoint European Delegated Prosecutors. The Administrative Court decided that the Government’s note of the valid State Prosecutorial Council’s proposal following a successful public call, when the latter has in fact been carried out, will also represent a decision on the legal entitlements of the candidates who applied.

Independence and professional competence are the two conditions that are and must continue to be the main criteria guiding the selection of European Delegated Prosecutors. Only then can the independence of the European Public Prosecutor’s Office be ensured and the Council Regulation be more than a dead letter. The regulation also requires EU institutions to respect the independence of the European Public Prosecutor’s Office and not to influence the office in the execution of its tasks. In this spirit, the increasing pressure of the European Commission, which sees the only possible solution in appointing the candidates from the first public call, is not a step in this direction. Nevertheless, the Government hopes that, despite the negative media campaign, the third public call will be successful and invites all state prosecutors meeting the requisite conditions of independence and professional competence to apply.