The Decision to Drop the Case: Res Iudicata of Transfer of Competence?

This paper discusses one of the most critical choices the EPPO is required to adopt, that is the decision to dismiss the case, either deferring it to national jurisdiction, or to OLAF, or sending it to the archives. The significance of the decision to dismiss a case is patent, because the dismissal constitutes the negative aspect of the decision to prosecute, which is the main task of the EPPO. The regulation approved on October 2017 seeks to pursue two goals: first, to leave the EPPO a certain margin of discretion when deciding whether to drop the case; secondly, to provide for some limit to the EPPO’s discretion, in order to avoid the risk of arbitrary decisions, or anyway based on mere opportunity considerations. The dismissal proceedings established by the EPPO regulation seems to reach an acceptable compromise between different legal traditions, the ones inspired by the strict legality principle, such as Italy and Germany, and the ones inspired by the principle of opportunity, such as, for example, France or England and Wales. It seems also in line with the emerging principles of international criminal law, where the international institution shares the efforts and labour with national agencies, and where the international forum is selected to try only the most serious crimes, leaving the others to national jurisdictions.