Ljubljana - The State Prosecution Council has welcomed the government's decision to refer the council's pick of the pair of candidates for delegated prosecutors to the European Public Prosecutor's Office (EPPO). Both the council and experts say such an act cannot be temporary, but the government says it invoked a clause in a Council Regulation of 2017.

The council welcomed what it said was the government's decision yesterday to take note of its proposal last year to appoint Tanja Frank Eler and Mateja Oštir for the two European delegated prosecutors (EDP) from Slovenia and refer it to the EPPO, whereby it said the government met its legal obligation.

As to the government's saying its decision was temporary, the council said legislation "does not provide for temporary appointment nor does it empower the government to replace or interfere in the council's proposal for the EDPs nomination".

Frank Eler and Oštir themselves welcomed the appointment procedure moving from the deadlock, but they said the government did not have the power to decide on the duration of EDPs' terms.

Similarly, the Supreme State Prosecution Office, while welcoming the government's decision, expressed its "surprise" over the "temporary" nature of the decision, saying it was not clear what "the temporariness should in fact signify and what led the government to take such an unusual decision".

However, the Justice Ministry told the STA the government applied an option under the Council Regulation 2017/1939 that allows a country in certain cases to put forward another prosecutor for new EPD.

The ministry invoked paragraph 5 of Article 17 which stipulates that if a EDP's services are no longer necessary to fulfil the duties of the EPPO the relevant member state shall immediately inform the European Chief Prosecutor and, where necessary, nominate another prosecutor to be appointed as the new EDP.

The ministry said the EDP selection procedure based on the first call for applications of October 2020 indeed did not follow the state prosecution act but the benefits of the services of the temporarily nominated EDP candidates "outweigh the damage caused to the EPPO and Slovenia by doubts about the lawfulness of the selection procedure".

The benefits of this temporary solution can be justified only "until the government puts forward to the EPPO a new proposal on candidates who will be selected based on a lawful and transparent procedure of selection among a sufficient number of competent and independent candidates". The government assesses the need will then arise to put forward two other candidates.

The entire paragraph 5 of the Article 5 reads: "If a European Delegated Prosecutor resigns, if his/her services are no longer necessary to fulfil the duties of the EPPO, or if he/she is dismissed or leaves his/her position for any other reason, the relevant member state shall immediately inform the European Chief Prosecutor and, where necessary, nominate another prosecutor to be appointed as the new European Delegated Prosecutor.

Meanwhile, paragraph 4 of the same articles says that a member state "may not dismiss, or take disciplinary action against, a European Delegated Prosecutor for reasons connected with his/her responsibilities under this Regulation without the consent of the European Chief Prosecutor".

Legal experts agree on principle that the argument of a temporary nature of the government's decision in this case is pointless. EDPs are nominated by the Prosecution Council and the government merely takes note of the proposal and refers it to the EPPO and the EPPO College then can appoint the nominees for a five-year term or turns them down as unsuitable, Janja Hojnik of the Maribor Faculty of Law has explained for the news portal N1.

"It is the Prosecution Council which puts forward the candidates and it cannot put them forward temporarily. The government takes note of the proposal and again it's not possible for it to take note of the proposal only temporarily," she said.

"Apart for certain fault reasons, early termination of the EDP's term is possible only if they step down themselves," said Hojnik, adding that Frank Eler and Oštir, if they were in fact appointed by the EPPO, would be in office for a five-year term.

Similarly, Matej Avbelj, a lecturer on EU law at the private New University, assessed for N1 that with the government's decision on Thursday the "case is closed from Slovenia's point of view".

Likewise, Boštjan Valenčič, the head of the Prosecutors' Association, has told TV Slovenija the procedure was thus completed. "The government will refer the names to Luxembourg where the final selection will be made. There is no notion of temporariness in the state prosecution act."

However, Hojnik warned that the temporary nature of the government's taking note could cause a legal conundrum. She reckons the likeliest scenario is that the EPPO will reject Slovenia's proposal because such a proposal cannot be temporary. The other option is for the EPPO to disregard the temporary nature of the proposal and appoint the two candidates for a five-year term, "which could lead to further legal issues".