EPPO (Controle juridictionnel des actes de procedure) (Judicial cooperation in criminal matters - European Public Prosecutor's Office - Opinion) FR [2024] EUECJ C-292/23 (04 October 2024)

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(Request for a preliminary ruling from the Juzgado Central de Instrucción n° 6 de la Audiencia Nacional (Central Court of Preliminary Investigation No 6 of the National High Court, Spain))

( Reference for a preliminary ruling - Judicial cooperation in criminal matters - European Public Prosecutor’s Office - Regulation (EU) 2017/1939 - Article 42(1) - Procedural acts of the European Public Prosecutor’s Office that are intended to produce legal effects vis-à-vis third parties - Witness summons - National legislation precluding direct judicial review by national courts - Second subparagraph of Article 19(1) TEU - Article 47 of the Charter of Fundamental Rights of the European Union - Right to effective judicial protection - Principles of equivalence and effectiveness )

1. In order to combat criminal offences affecting the financial interests of the European Union, Regulation 2017/1939 (2) established the European Public Prosecutor’s Office (‘the EPPO’) as an ‘independent’ and ‘indivisible Union body operating as one single Office with a decentralised structure’. (3) The EPPO is organised at two levels: a Central Office, with its seat in Luxembourg, and a decentralised level of European Delegated Prosecutors (‘the EDPs’), embedded in the Member States’ legal systems. (4) EDPs are both an integral part of the EPPO, and act on its behalf, whilst being integrated into their respective national prosecutorial systems at an operational level. (5) They are responsible for undertaking investigations, (6) prosecuting offences and bringing cases to judgment, wielding both the powers that the EPPO Regulation confers upon them directly and those they exercise in their capacity as national prosecutors. (7)

2. The EPPO not only discharges its task in close liaison with the Member States’ national authorities, but in so doing largely relies on national law. By its Article 5(3), the EPPO Regulation governs ‘the investigations and prosecutions on behalf of the EPPO’, and national law applies where it is silent on a matter. (8) It further provides that, in principle, the applicable national law is that which applies to the handling EDP. Many provisions of the EPPO Regulation, in particular those of a procedural nature, (9) refer to national law to identify the conditions and the procedures under which they apply.

3. The present request for a preliminary ruling from the Juzgado Central de Instrucción n° 6 de la Audiencia Nacional (Central Court of Preliminary Investigation No 6 of the National High Court, Spain), acting as ‘Juez de Garantías’ (judge of guarantees), (10) asks the Court of Justice to interpret Article 42(1) of the EPPO Regulation for the first time. That provision confers jurisdiction to review the legality of the EPPO’s procedural acts that are intended to produce legal effects vis-à-vis third parties on national courts. (11) In particular, it asks if national legislation that excludes from direct judicial review witness summonses issued by an EDP is compatible with that provision and with the EU law principles of equivalence and effectiveness.

4. So far as appears relevant to the circumstances of this reference, recitals 86 to 89 of the EPPO Regulation state that:

‘(86) Article 86(3) TFEU allows the Union legislator to determine the rules applicable to the judicial review of procedural measures taken by the EPPO in the performance of its functions. That competence granted to the Union legislator reflects the specific nature of the tasks and structure of the EPPO, which is different from that of all other bodies and agencies of the Union and requires special rules regarding judicial review.

(87) According to Article 86(2) TFEU, the EPPO exercises its functions of prosecutor before the competent courts of the Member States. Acts undertaken by the EPPO in the course of its investigations are closely related to the prosecution which may result therefrom, and thus have effects in the legal order of the Member States. In many cases the acts will be carried out by national law enforcement authorities acting under the instructions of the EPPO, in some cases after having obtained the authorisation of a national court.

It is therefore appropriate to consider that procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties should be subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law. This should ensure that the procedural acts of the EPPO that are adopted before the indictment and intended to produce legal effects vis-à-vis third parties (a category which includes the suspect, the victim, and other interested persons whose rights may be adversely affected by such acts) are subject to judicial review by national courts. …

Actions before competent national courts for failures of the EPPO to act are those regarding procedural acts which the EPPO is under a legal obligation to adopt and which are intended to produce legal effects vis-à-vis third parties. Where national law provides for judicial review concerning procedural acts which are not intended to produce legal effects vis-à-vis third parties or for legal actions concerning other failures to act, this Regulation should not be interpreted as affecting such legal provisions. In addition, Member States should not be required to provide for judicial review by the competent national courts of procedural acts which are not intended to produce legal effects vis-à-vis third parties, such as the appointment of experts or the reimbursement of witness costs.

(88) The legality of procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties should be subject to judicial review before national courts. In that regard, effective remedies should be ensured in accordance with the second subparagraph of Article 19(1) TEU. Furthermore, as underlined by the case-law of the Court of Justice, the national procedural rules governing actions for the protection of individual rights granted by Union law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Union law (principle of effectiveness).

When national courts review the legality of such acts, they may do so on the basis of Union law, including this Regulation, and also on the basis of national law, which applies to the extent that a matter is not dealt with by this Regulation. As underlined in the case-law of the Court of Justice, national courts should always refer preliminary questions to the Court of Justice when they entertain doubts about the validity of those acts vis-à-vis Union law.

(89) The provision of this Regulation on judicial review does not alter the powers of the Court of Justice to review the EPPO administrative decisions, which are intended to have legal effects vis-à-vis third parties, namely decisions that are not taken in the performance of its functions of investigating, prosecuting or bringing to judgement. This Regulation is also without prejudice to the possibility for a Member State of the European Union, the European Parliament, the Council or the [European] Commission to bring actions for annulment in accordance with the second paragraph of Article 263 TFEU and to the first paragraph of Article 265 TFEU, and to infringement proceedings under Articles 258 and 259 TFEU.’

5. Under Article 30 of the EPPO Regulation, headed ‘Investigation measures and other measures’:

‘1. At least in cases where the offence subject to the investigation is punishable by a maximum penalty of at least 4 years of imprisonment, Member States shall ensure that the [EDPs] are entitled to order or request the following investigation measures:

(a) search any premises, land, means of transport, private home, clothes and any other personal property or computer system …;

4. The [EDPs] shall be entitled to request or to order any other measures in their Member State that are available to prosecutors under national law in similar national cases, in addition to the measures referred to in paragraph 1.

5. The [EDPs] may only order the measures referred to in paragraphs 1 and 4 where there are reasonable grounds to believe that the specific measure in question might provide information or evidence useful to the investigation, and where there is no less intrusive measure available which could achieve the same objective. The procedures and the modalities for taking the measures shall be governed by the applicable national law.’

6. Article 41 of the EPPO Regulation, headed ‘Scope of the rights of the suspects and accused persons’, provides:

‘1. The activities of the EPPO shall be carried out in full compliance with the rights of suspects and accused persons enshrined in the Charter [of Fundamental Rights of the European Union (‘the Charter’)], including the right to a fair trial and the rights of defence.

2. Any suspected or accused person in the criminal proceedings of the EPPO shall, at a minimum, have the procedural rights provided for in Union law, including directives concerning the rights of suspects and accused persons in criminal procedures, as implemented by national law, such as:

(a) the right to interpretation and translation, as provided for in Directive 2010/64/EU;

(b) the right to information and access to the case materials, as provided for in Directive 2013/13/EU;

(c) the right of access to a lawyer and the right to communicate with and have third persons informed in the event of detention, as provided for in Directive 2013/48/EU;

(d) the right to remain silent and the right to be presumed innocent as provided for in Directive (EU) 2016/343;

3. Without prejudice to the rights referred to in this Chapter, suspects and accused persons as well as other persons involved in the proceedings of the EPPO shall have all the procedural rights available to them under the applicable national law, including the possibility to present evidence, to request the appointment of experts or expert examination and hearing of witnesses, and to request the EPPO to obtain such measures on behalf of the defence.’

‘1. Procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties shall be subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law. The same applies to failures of the EPPO to adopt procedural acts which are intended to produce legal effects vis-à-vis third parties and which it was legally required to adopt under this Regulation.

2. The Court of Justice shall have jurisdiction, in accordance with Article 267 TFEU, to give preliminary rulings concerning:

(a) the validity of procedural acts of the EPPO, in so far as such a question of validity is raised before any court or tribunal of a Member State directly on the basis of Union law;

(b) the interpretation or the validity of provisions of Union law, including this Regulation;

3. By way of derogation from paragraph 1 of this Article, the decisions of the EPPO to dismiss a case, in so far as they are contested directly on the basis of Union law, shall be subject to review before the Court of Justice in accordance with the fourth paragraph of Article 263 TFEU.

8. This Article is without prejudice to judicial review by the Court of Justice in accordance with the fourth paragraph of Article 263 TFEU of decisions of the EPPO that affect the data subjects’ rights under Chapter VIII and of decisions of the EPPO which are not procedural acts, such as decisions of the EPPO concerning the right of public access to documents, or decisions dismissing [EDPs] adopted pursuant to Article 17(3) of this Regulation, or any other administrative decisions.’

8. Article 42(1) and (3) of Ley Orgánica 9/2021 de aplicación del Reglamento (UE) 2017/1939 del Consejo, de 12 de octubre de 2017, por el que se establece una cooperación reforzada para la creación de la Fiscalía Europea (Organic Law 9/2021 implementing [the EPPO Regulation]) of 1 July 2021 (12) (‘Law 9/2021’), which provision is headed ‘Investigation powers of the [EDP]’, provides that:

‘1. The [EDPs], in accordance with the provisions of [Law 9/2021], the [EPPO] Regulation and the rules laid down in its rules of procedure, shall conduct the investigation ordering the completion of all the steps in the investigation and taking the interim protective measures set out in the Ley de Enjuiciamiento Criminal [(Code of Criminal Procedure)], except those reserved to the courts by the Constitution and other legal provisions, which must be authorised by the judge of guarantees;

3. The investigation shall be conducted in accordance with the provisions of the Code of Criminal Procedure, except in particular cases expressly provided for in [Law 9/2021].’

9. Article 43 of Law 9/2021, headed ‘Witness statements’, is in the following terms:

‘1. The [EDP] may summon and take witness statements from any person with knowledge of facts and circumstances relevant to the finding of an offence and the determination of the person responsible, or who could provide useful information for that purpose.

With the exception of persons who are exempt from the obligation to appear and provide witness evidence in the oral part of court proceedings, any person who is summoned by the [EDP] is required to appear and to provide evidence, as a witness, as to everything that he or she knows as regards the questions posed to him or her.

2. The witness statement shall be taken in the form laid down in the Code of Criminal Procedure.

The parties to the proceedings, through their lawyers, may attend the witness making a statement, in which case, at the end of the statement, they shall be given the opportunity to ask the witness to make any clarifications they deem necessary.’

‘The decisions made by the [EDP] during the investigation procedure may only be challenged before the judge of guarantees in the cases expressly provided for in [Law 9/2021].’

11. Under Law 9/2021, the defence may challenge the following EDPs’ decisions:

- the decision refusing to take a new statement from the person under investigation, who had so requested;

- the decision refusing to carry out the investigation measures sought before the EDP;

- the decision refusing to include in the case file documents and reports submitted;

- the decision refusing the intervention of the expert appointed by the defence on the area of expertise that he or she agreed to address;

12. Article 91 of Law 9/2021 describes the procedural steps to be taken with respect to applications to challenge such decisions.

‘The investigating judge shall carry out all investigation measures proposed by the Public Prosecution Office or by any party to the proceedings, unless he or she considers them to be unnecessary or prejudicial.

A decision refusing to carry out the investigation measures requested may be the subject of an appeal, which will be admitted and referred immediately, without suspensory effect, before the competent court.’

Facts, dispute, questions referred for a preliminary ruling and procedure before the Court

14. I.R.O. and F.J.L.R. were directors of a foundation, established under Spanish law, which obtained a subsidy to implement a project financed by EU funds. The European Anti-Fraud Office (OLAF) informed the Fiscalía de área de Getafe-Leganés (Public Prosecutor’s Office, Getafe-Leganés, Spain) that direct staff costs that that foundation had claimed in respect of two researchers it had employed to carry out the project, namely Y.C. and I.M.B., had been insufficiently justified. The Fiscalía de área de Getafe-Leganés (Public Prosecutor’s Office, Getafe-Leganés) filed a complaint with the Juzgado de Primera Instancia e Instrucción n° 1 de Getafe (Court of First Instance and Preliminary Investigations No 1, Getafe, Spain) alleging the commission of a subsidy fraud offence. (13) On 20 April 2021, that court initiated a criminal investigation against I.R.O.

15. In the context of that investigation, on 21 May 2021, the Juzgado de Primera Instancia e Instrucción n° 1 de Getafe (Court of First Instance and Preliminary Investigations No 1, Getafe) interrogated I.R.O. as an ‘investigado’ (person under investigation). I.R.O. exercised his right to remain silent. On 2 July 2021, that court examined Y.C. as a witness.

16. On 12 August 2021, the Juzgado de Primera Instancia e Instrucción n° 1 de Getafe (Court of First Instance and Preliminary Investigations No 1, Getafe) declined jurisdiction in favour of the EPPO. On 21 September 2021, the EPPO referred the case to the competent national authorities. It informed the Juzgado de Primera Instancia e Instrucción n° 1 de Getafe (Court of First Instance and Preliminary Investigations No 1, Getafe) of its decision not to request the evocation of the case.

17. By order of 9 June 2022, (14) in response to a jurisdictional issue that the Juzgado de Primera Instancia e Instrucción n° 1 de Getafe (Court of First Instance and Preliminary Investigations No 1, Getafe) had raised, the Tribunal Supremo (Supreme Court, Spain) decided to assign jurisdiction for the investigation to the EPPO. By decision of 26 July 2022, the handling EDPs in Spain exercised their right of evocation and initiated the investigation out of which this reference for preliminary ruling arises.

18. By order of 27 July 2022, the referring court, the Juzgado Central de Instrucción n° 6 de la Audiencia National (Central Court of Preliminary Investigation No 6 of the National High Court), acting in its capacity as judge of guarantees, initiated the guarantees procedure.

19. By decisions of 22 August and 25 October 2022, the handling EDPs respectively summoned I.R.O. and F.J.L.R. to appear at the ‘Primera comparecencia para el traslado de cargos’ (first hearing for the communication of facts and proofs) provided for in Article 27 of Law 9/2021 for the purpose of informing each of them that they were under investigation for the offences of subsidy fraud and forgery of documents. (15) I.R.O.’s hearing took place on 5 October 2022. F.J.L.R.’s hearing was held on 15 December 2022.

20. By decision of 2 February 2023, taken under Article 43 of Law 9/2021, the handling EDPs summoned Y.C. and I.M.B. to appear before them as witnesses. Relying upon Article 90 of Law 9/2021, on 7 February 2023, lawyers representing I.R.O. and F.J.L.R. lodged an appeal against that decision with the EPPO in so far as it had summoned Y.C. to appear as a witness. (16) They submitted that investigation measure was neither relevant, necessary, nor useful, since the Juzgado de Primera Instancia e Instrucción n° 1 de Getafe (Court of First Instance and Preliminary Investigations No 1, Getafe) had already heard Y.C. in that capacity. On 8 February 2023, that appeal was notified to the referring court. On 23 February 2023, the handling EDPs submitted written observations in that appeal. The EDPs and the lawyers representing I.R.O. and F.J.L.R. submitted written observations on 22 and 23 March 2023, respectively, on the possibility of the referring court making a reference for a preliminary ruling.

21. The referring court asks the Court to provide it with guidance on the interpretation of EU law to enable it to assess the effects of the EPPO Regulation upon Law 9/2021 as regards the judge of guarantees’ powers to review certain of the EDP’s procedural acts intended to produce legal effects vis-à-vis third parties. It observes that, pursuant to Articles 42 and 43 of Law 9/2021, read in conjunction with Article 90 thereof, judicial review of a category of EDPs’ procedural acts must be authorised expressly. Since witness summonses do not appear among that category, there is no appeal to the judge of guarantees against the decision of 2 February 2023.

22. The referring court points out that, by Article 42 of the EPPO Regulation, EPPO procedural acts intended to produce legal effects vis-à-vis third parties must be subject to judicial review. The referring court is of the view that the decision of 2 February 2023 is such a procedural act. It first submits that that decision has a direct effect on Y.C. and I.M.B.’s rights to free movement and to liberty, guaranteed by Article 6 of the Charter, since they will be legally obliged to be in a given place on the time and date indicated in the summons. (17) The decision may also prejudice Y.C. and I.M.B.’s rights of defence, contrary to Article 48 of the Charter, in so far as they will be obliged to say everything they know and to tell the truth, (18) in circumstances where Spanish procedural law does not envisage that witnesses are assisted by a lawyer when they give evidence. In the present case, the infringement of the rights of defence is all the more serious since there is a ‘reasonable possibility’ that their statements may disclose evidence of their participation in the offences under investigation. The possibility, to which the handling EDPs refer in their observations of 22 March 2023, that under Article 29 of Law 9/2021 persons under investigation may move at trial to have a procedural act declared automatically void by reason of a delay in the first hearing for the communication of facts and proofs is an exceptional plea. On grounds, inter alia, of legal certainty, it is undesirable that a person may be required to rely upon such a plea at a late stage in criminal proceedings. The referring court further represents that the witness summonses have effects upon I.R.O.’s and F.J.L.R.’s legal situations. Reissuing Y.C.’s summons to appear as a witness infringes the right to have their case heard within a reasonable time. Y.C.’s and I.M.B.’s witness statements could also enable the EDPs to gather incriminating evidence for use in the criminal proceedings against I.R.O. and F.J.L.R.

23. In the light of the foregoing, the referring court perceives that the absence of an appeal against the decision of 2 February 2023 could restrict the enjoyment of an individual right derived from EU law, which restriction is unjustified by reference to the principles of equivalence and effectiveness.

24. As for the principle of equivalence, the referring court observes that a Juez de Instrucción (investigating judge), the ‘equivalent’ of an EDP, charged with the investigation of the allegations which are the subject of the EPPO’s proceedings, would follow the ‘Diligencias Previas’ (preliminary investigation) procedure since a term of no more than five years’ imprisonment may be imposed upon conviction for the relevant offences. Under Article 766 of the Code of Criminal Procedure, (19) measures ordered by investigating judges in the context of a preliminary investigation may be appealed to the judge who took the decision and, thereafter, to a higher court.

25. The referring court records that, in their observations of 22 March 2023, the handling EDPs submit that, under the ‘Procedimiento Sumario Ordinario’ (procedure for offences punishable by a term of imprisonment of more than five years), Article 311 of the Code of Criminal Procedure provides that decisions to adopt investigation measures sought by parties are not subject to appeal. In that context, the EDPs rely upon a line of case-law that extends the application of that provision to the preliminary investigation procedure. The referring court observes that the Tribunal Supremo (Supreme Court) has not confirmed that line of case-law, it has not been received unanimously and it has not been the subject of legislative change.

26. The referring court has concerns as regards the application of the principle of equivalence, since Law 9/2021 does not permit judicial review of witness summonses issued by an EDP, whereas the Code of Criminal Procedure does not limit the categories of decisions taken by investigating judges to order or to refuse investigation measures that are subject to appeal.

27. Turning to the principle of effectiveness, the referring court observes that the right to bring an action against EPPO procedural acts intended to produce legal effects vis-à-vis third parties is derived from Article 42 of the EPPO Regulation directly. That possibility is an expression of both the fundamental right to an effective judicial remedy and respect for the rights of the defence, which Articles 47 and 48 of the Charter protect. A restrictive interpretation of the judge of guarantees’ powers of review under Article 90 of Law 9/2021 is thus an obstacle to the exercise of the fundamental rights the EPPO Regulation affords to citizens.

28. In those circumstances, the Juzgado Central de Instrucción n° 6 of the Audiencia Nacional (Central Court of Preliminary Investigation No 6 of the National High Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is Article 42(1) of [the EPPO] Regulation … to be interpreted as precluding a national provision, like Article 90 of [Law] 9/2021 …, which excludes from judicial review a procedural act of the [EPPO] which produces legal effects vis-à-vis third parties (in the sense described), such as the decision of the [EDP] to summon witnesses in the [decision] of 2 February 2023?

(2) Are Articles 6 and 48 of the [Charter] and Article 7 of Directive (EU) 2016/343 [of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1)] to be interpreted as precluding a national provision, like Article 90, in conjunction with [Article] 42(1) and (3) and [Article] 43, of [Law] 9/2021 […], which excludes from judicial review a procedural act of the [EPPO] such as the decision of the [EDP] to summon as a witness a third party in respect of whom a reasonable expectation of involvement in the offences under investigation has been identified?

(3) Are the second subparagraph of Article 19(1) TEU and Article 86(3) TFEU to be interpreted as precluding a system of judicial review, of the kind laid down in Articles 90 and 91 of [Law] 9/2021 in relation to acts of [EDPs] adopted under [Article] 42(1) and [Article] 43 of [Law] 9/2021, which excludes from judicial review a measure adopted by the [EDP] in the exercise of his or her investigative powers and which has no equivalent in the national procedural provisions governing the right to contest decisions adopted by investigating judges in the exercise of their investigative powers?

(4) Is Article 2 TEU, which enshrines the values inherent in the rule of law on which the Union is founded, in conjunction with the right to an effective remedy and the right to a fair trial laid down in Article 47 of the [Charter] and the principle of effectiveness laid down in the second subparagraph of Article 19(1) TEU, to be interpreted as precluding a system of judicial review of acts of [EDPs] which limits the situations in which there is a right to contest decisions to a closed number of situations such as that provided for in Spanish law in Articles 90 and 91 of [Law] 9/2021?’

29. I.R.O. and F.J.L.R., the EPPO, the French, Italian, Netherlands and Spanish Governments and the Commission submitted written observations. At the hearing on 10 September 2024, the same parties, with the exception of the Italian Government, presented oral argument and answered questions put by the Court.

30. The EPPO, the French, Netherlands and Spanish Governments and the Commission submit that the second question is inadmissible on the ground that it is purely hypothetical and any answer to it could have no bearing on the outcome of the dispute in the main proceedings. That is because the main proceedings concern challenges, by the persons under investigation, to the EDPs’ decision to summon third parties as witnesses, whereas the second question concerns the possibility of the witnesses themselves challenging that decision.

31. According to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling to enable it to deliver judgment and the relevance of the questions it submits. Consequently, where the questions referred concern the interpretation of EU law, the Court is, in principle, bound to give a ruling. It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to answer a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (20)

32. It is clear from the text of the second question, from the provisions of EU law to which it refers and from the explanations in the order for reference (21) that the referring court seeks to ascertain whether persons summoned by a decision of an EDP to give evidence as witnesses can contest that decision in legal proceedings. The witnesses summoned, namely Y.C. and I.M.B., do not challenge the validity of the decision of 2 February 2023. The main proceedings consist of a challenge by the persons under investigation, namely I.R.O. and F.J.L.R., to that decision. In those circumstances, it is clear, in my view, that any answer to the second question has no bearing upon the outcome of the main proceedings and is hypothetical in nature. Applying the case-law to which point 31 of the present Opinion refers, I advise the Court to declare that question inadmissible.

Joint consideration and reformulation of the first, third and fourth questions

33. The Commission proposes that the Court examine the first, third and fourth questions together. I subscribe to that proposal since the answer to those questions turns on the interpretation of Article 42(1) of the EPPO Regulation.

34. I am, furthermore, of the opinion that those three questions ought to be reformulated (22) so as to ask whether Article 42(1) of the EPPO Regulation, read in the light of Article 47 of the Charter, the second subparagraph of Article 19(1) TEU and the principles of equivalence and effectiveness, must be interpreted as precluding national legislation pursuant to which persons under investigation may not directly challenge before a competent national court a decision by which, in the context of the criminal investigation against those persons, the handling EDP summonses third parties to appear as witnesses. (23)

35. The following reasons persuade me to propose that reformulation. As I observe in point 32 of the present Opinion, the dispute in the main proceedings arises from an action brought by persons under investigation against a decision by which the handling EDPs summoned third parties to appear before them as witnesses. The provisions to which the fourth question refers, namely Articles 2 TEU, the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, may be considered in the context of the reformulated question since Article 42(1) of the EPPO Regulation seeks to apply them in the context of the EPPO’s procedural acts. (24) In light of the reference to both the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, the Court may decide to dispense with a consideration of Article 2 TEU. From the grounds of the order for reference, it is clear that the third question raises the issue of the principle of equivalence as a limit to Member States’ procedural autonomy, which issue is thus included in the proposed reformulation. As point 55 of the present Opinion sets out in more detail, the order for reference seems to assume that Article 42(1) of the EPPO Regulation requires that a procedural act, such as the decision of 2 February 2023, must be capable of being challenged by way of a direct action before a competent national court.

36. As is apparent from Article 1 thereof, Law 9/2021 integrates the EPPO Regulation into the Spanish legal order. That law introduced a new procedural system whereby EDPs investigate and prosecute offences that affect the financial interests of the European Union, while a national judicial authority, enjoying the status of an impartial third party, safeguards the fundamental rights of the persons under investigation. (25) The authority to be established within the competent court (26) as ‘a body that is not involved in the conduct of the procedure, but which is nevertheless responsible for the judicial review tasks expressly provided for by [Law 9/2021]’ (27) is the judge of guarantees.

37. In my view, it is clear that Article 42(1) of the EPPO Regulation obliges Member States to provide for the effective judicial review of EPPO’s procedural acts intended to produce legal effects vis-à-vis third parties. (28) In addition to the terms of recital 88 of the EPPO Regulation set out in point 4 of the present Opinion, the effective judicial protection of individuals’ rights is a general principle of EU law which stems from the constitutional traditions common to the Member States enshrined in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. Article 47 of the Charter reaffirms that principle so that, in a context such as that which arises here, it is to be taken into consideration when interpreting the second subparagraph of Article 19(1) TEU. (29) It should also be borne in mind that when they implement EU law (which is the case here), Member States must ensure the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter. (30)

38. Central to the present case is the question whether a decision, by which an EDP summonses a third party to appear before it as a witness, constitutes an EPPO procedural act intended to produce legal effects vis-à-vis the persons under investigation for the purposes of Article 42(1) of the EPPO Regulation. If that decision is such an act, that provision requires that it may be subject to judicial review by a competent national court.

39. The first issue to be determined in that context is whether the term ‘[p]rocedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties’ is an autonomous concept of EU law which requires that it be interpreted in a uniform manner throughout the European Union. To decide that question, account must be taken of the text of the provision in which that term appears, the context in which that provision is placed and the objectives pursued by the rules of which it forms part. (31)

40. The EPPO Regulation does not define that concept and the reference to national law in Article 42(1) is not determinative of its meaning and scope.

41. It is apparent from the text of Article 42(1) of the EPPO Regulation, read in the light of that article’s general scheme and purpose, that it aims to confer jurisdiction on national courts (32) to judicially review acts which, since the EPPO is an EU body, (33) would otherwise come within the exclusive jurisdiction of the EU Courts. (34) It follows from Article 42(2) to (8) of the EPPO Regulation that, outside of the jurisdiction that paragraph 1 of that article reserves to national courts, the EU Courts are competent to review the legality of the EPPO’s acts. (35) That is the case, in particular, as regards the EPPO’s ‘administrative decisions’, to which paragraph 8 refers and which come within Article 263(4) TFEU, in contrast with the EPPO’s ‘procedural acts’, to which paragraph 1 refers, that are, in principle, (36) subject to ‘review by the competent national courts’.

42. Recourse to the expression ‘intended to produce legal effects vis-à-vis third parties’ in Article 42(1) of the EPPO Regulation further confirms that the provision is intended to confer jurisdiction on national courts that the EU Courts would have assumed otherwise. In their written observations, the EPPO, the French and Spanish Governments and the Commission point out that that expression reproduces verbatim the text of the first paragraph of Article 263 TFEU (37), which defines the acts of the institutions, bodies, offices or agencies of the European Union that the EU Courts have jurisdiction to review. (38)

43. Another reason that militates in favour of an autonomous and uniform interpretation of ‘[p]rocedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties’ is the need to ensure a consistent division of jurisdiction between national courts and EU Courts in the exercise of judicial control over the EPPO’s acts. I therefore share the EPPO’s view that ‘[p]rocedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties’ is an autonomous concept of EU law. (39)

44. As for the content of that concept, it is apparent from the first paragraph of recital 87 of the EPPO Regulation that the expression ‘procedural acts’ in particular includes those ‘undertaken by the EPPO in the course of its investigations’. The second paragraph of that recital ensures that ‘the procedural acts of the EPPO that are adopted before the indictment’ are also subject to judicial review by national courts. The expression ‘procedural acts’ includes, but is not limited to, (40) ‘investigation measures’ within the meaning of Article 30 of the EPPO Regulation. Consequently, as I.R.O. and F.J.L.R. and the EPPO submit, a decision by which an EDP summonses a person to appear as a witness is, in my view, a procedural act for the purposes of Article 42(1) of the EPPO Regulation. Admittedly Article 30(1) of that regulation does not include that decision among the set of ‘investigation measures’ that must be available to EDPs in the Member States ‘[a]t least in cases where the offence subject to the investigation is punishable by a maximum penalty of at least 4 years of imprisonment’. Article 30(4) of the EPPO Regulation provides, however, that ‘[the EDPs] shall be entitled to request or to order any other measures in their Member State that are available to prosecutors under national law in similar national cases, in addition to the measures referred to in paragraph 1’. Article 43(1) of Law 9/2021 expressly provides that EDPs may summon persons to appear as witnesses.

45. As regards the expression ‘that are intended to produce legal effects vis-à-vis third parties’, it can be deduced from the use of the identical terms in Article 263(1) TFEU (41) that the legislator’s intention in enacting Article 42(1) of the EPPO Regulation was to ensure that, in a system of judicial review adapted to the EPPO’s specific nature, acts of that body that should normally have been subject to review by the EU Courts by way of direct action may be subject to judicial review before national courts, thereby ensuring compliance with the second subparagraph of Article 19(1) TEU and Article 47 of the Charter.

46. It follows, in my view, that, as the EPPO, the French Government and the Commission expressly submit, the Court’s settled case-law on the concept of ‘acts intended to produce legal effects vis-à-vis third parties’ for the purposes of Article 263 TFEU applies to the interpretation of Article 42(1) of the EPPO Regulation. Under the fourth paragraph of Article 263 TFEU, read in conjunction with its first paragraph, an action for annulment may be brought against all measures or acts the EU institutions, bodies, offices and agencies adopt, whatever their form, which are intended to produce legal effects binding on and are capable of affecting the interests of a natural or legal person by bringing about a distinct change in their legal position. In order to ascertain whether an act produces such effects and, accordingly, may be the subject matter of such an action, it is necessary to examine the substance of that act and to assess its effects in the light of objective criteria, such as its content, taking into account, as appropriate, the context in which it was made and the powers of the institution, body, office or agency that adopted it. (42)

47. From the foregoing one can conclude that the EU legislature did not intend to limit, to specific categories, the mandatory judicial review of EPPO procedural acts for which Article 42(1) of the EPPO Regulation provides. Read in the light of the Court’s case-law cited in the preceding point, as a consequence of that provision any procedural act an EDP adopts in the course of its investigations that is intended to produce binding legal effects capable of affecting the interests of third parties by bringing about a distinct change in their legal position must be capable of being subject to judicial review by a competent national court. I should add that it is apparent from recital 87 of the EPPO Regulation that the expression ‘third parties’, to which Article 42(1) thereof refers, is to be understood in a wide sense to include ‘the suspect’ (43), ‘the victim’ and all ‘other interested persons whose rights may be adversely affected by such acts’. (44)

48. The referring court and I.R.O. and F.J.L.R. assert that the decision of 2 February 2023 is an EPPO procedural act that produces legal effects for them, as persons under investigation, since (a) it infringes their right to a trial within a reasonable time and (b) an additional witness statement by Y.C. could disclose inculpatory evidence that the handling EDPs could use in criminal proceedings against them. By contrast, the EPPO, the French and Spanish Governments and the Commission maintain, on the basis of different arguments, (45) that a decision by a handling EDP to summon a third party to give evidence as a witness is not a measure the legal effects of which are binding on, and capable of affecting the interests of, persons under investigation by bringing about a distinct change in their legal position.

49. In the abstract, I am unconvinced by the arguments advanced on behalf of I.R.O. and F.J.L.R. as adopted by the referring court. As the French and Spanish Governments and the Commission observe, the examination of a witness may contain evidence that is of an inculpatory and an exculpatory nature. It is relevant to point out, in that context, that Article 5(4) of the EPPO Regulation provides that ‘[t]he EPPO shall conduct its investigations in an impartial manner and shall seek all relevant evidence whether inculpatory or exculpatory’. (46) The French Government adds that such an examination may well have as its sole purpose to clarify certain facts, to provide background information, to explain a complex mechanism to the investigator or to shed light on the personality of the persons concerned. I agree that while the summoning and the hearing of a witness may lengthen the duration of a procedure, such measures may facilitate the conduct of an investigation and, in any event, contribute to the thorough investigation of allegations.

50. Notwithstanding these observations, I am of the view that the question as to whether a decision by an EDP to summon a third party to appear as a witness is a procedural act intended to produce legal effects vis-à-vis a person under investigation cannot be assessed and answered in a general and an abstract manner.

51. The EPPO does not operate in a single legal area and the EPPO Regulation governs EPPO procedures in part only. (47) In the words of Advocate General Ćapeta, ‘the EPPO is indeed a single and indivisible body, but functions without a common substantive or procedural criminal law’, and ‘[t]hose issues depend largely on the laws of Member States, which might diverge in terms of the solutions they adopt’. (48) Other than the EU law procedural rights that, pursuant to Article 41(2) of the EPPO Regulation, must be guaranteed ‘at a minimum’ to suspects and accused persons in criminal proceedings, as a consequence of the EPPO Regulation’s reliance on national law the rights of persons concerned by such procedures differ depending on the Member State in which the EPPO investigates and prosecutes offences. In the same vein, the fact that Article 30(5) of the EPPO Regulation provides that the ‘procedures and modalities for taking the measures’ referred to in paragraphs 1 and 4 of that article are governed by the ‘applicable national law’ may have the consequence that a procedural act, such as a witness summons, adopted by a handling EDP in one Member State would not have legal effects on the situation of persons concerned by that act, whereas the same procedural act taken in another Member State would have those effects. As the French and the Netherlands Governments observed at the hearing, the scope of the EPPO’s procedural acts subject to review before national courts is therefore likely to vary depending on the applicable national law. The requirement of an in concreto assessment of this issue also stems from the case-law to which I refer in point 46 of the present Opinion, from which it follows that it is necessary to take account of the objective criteria there referred to.

52. By reason of the foregoing, I advise that it would be inappropriate for the Court to take a general position on the question as to whether a decision by which a handling EDP summonses a third party to appear before it as a witness falls within the scope of Article 42(1) of the EPPO Regulation. That issue is ultimately for national courts to determine, by ascertaining whether that decision is an act intended to produce legal effects binding on, and capable of affecting the interests of, the third party concerned by bringing about a distinct change in his or her legal position. To that end, national courts must examine the substance of the decision and assess those effects in the light of objective criteria, such as its content, taking into account, as appropriate, the specific procedural context in which it was made and the powers of the body that adopted it. Should a national court find, on completion of that examination, that the decision by which a handling EDP summonses a third party to appear before it as a witness is not intended to produce legal effects vis-à-vis persons under investigation, national legislation which precludes judicial review of that decision would be compatible with Article 42(1) of the EPPO Regulation, read in the light of Article 47 of the Charter and the second subparagraph of Article 19(1) TEU, and the principles of equivalence and effectiveness.

53. In his Opinion in Asociaţia ‘Forumul Judecătorilor din România’ and Others, Advocate General Bobek points out that an individual who wishes to avail of the benefit of Article 47 of the Charter to substantiate a procedural right that provision guarantees must enjoy a ‘right or freedom’ under EU law that he or she seeks to enforce before a court. (49) I agree with the Commission that, if a decision to summon a third party as a witness is not intended to produce legal effects vis-à-vis persons under investigation, those persons’ legal positions are unaffected and they cannot rely on a right derived from EU law, thereby rendering otiose the application of Article 47 of the Charter. In the absence of any legal effects, the availability of an effective remedy in accordance with the second subparagraph of Article 19(1) TEU similarly does not arise. Finally, if no provision of the EPPO Regulation or of any other EU act confers on persons under investigation a right to challenge before national courts EPPO procedural acts that are not intended to produce legal effects vis-à-vis third parties, there is no infringement of the principles of equivalence and effectiveness.

54. Were a national court to find that a decision, such as that of 2 February 2023, is an act that falls within the scope of Article 42(1) of the EPPO Regulation, that provision requires such a decision to be ‘subject to review by the competent national courts’. Of what does that judicial review consist? In the context of this reference for a preliminary ruling, does it require that a direct action to challenge the validity of that decision be available?

55. In the present case, it is common ground that, under Spanish law, a decision by which a handling EDP summonses a third party to appear before it as a witness cannot be the subject of direct action by persons under investigation before a domestic court. It is apparent from the order for reference that the referring court relies on the premiss that the EU legislature intended that acts falling within the scope of Article 42(1) of the EPPO Regulation must be amenable to challenge by way of a direct action. It thus appears to discount the possibility that the EU legislature did not seek to define the detailed rules under which such acts could be judicially reviewed, with the result that such review could be conducted indirectly. (50) By contrast, in its written observations, the Italian Government submits that judicial review of EPPO procedural acts intended to produce legal effects vis-à-vis third parties does not require that an action for their annulment be available. It represents that, unlike the position in Spain, the Italian Code of Criminal Procedure has abolished the investigating judge, simultaneously doing away with any ex ante control of an EPPO procedural act to summons a third party to give evidence. The trial court has instead jurisdiction to rule upon the legality of all evidence adduced before it and, where appropriate, to disregard it. (51) At the hearing, in response to a written question by the Court, the EPPO and the French, Netherlands and Spanish Governments each insisted that incidental judicial control of the validity of EPPO procedural acts meets the requirements of Article 42(1) of the EPPO Regulation. The EPPO accepted that there was no direct legal remedy against EDPs’ decisions to admit investigation measures. It claimed that Spanish law provided several incidental remedies for the judicial review of such measures throughout the investigation phase and, after it had closed, at the oral stage of a criminal trial, thereby guaranteeing the right to effective judicial protection and respect for the rights of the defence. The French, Netherlands and Spanish Governments were of the same opinion.

56. Article 42(1) of the EPPO Regulation confers a margin of discretion on Member States, within the context of their procedural autonomy, where it states that the judicial review envisaged thereunder is to be carried out ‘in accordance with the requirements and procedures laid down by national law’. (52) That provision does not determine the nature of that ‘review’ or the type of decision a national court may take when it exercises it.

57. Recital 88 of the EPPO Regulation requires that, in the review before national courts of the legality of EPPO procedural acts intended to produce legal effects vis-à-vis third parties, ‘effective remedies should be ensured in accordance with the second subparagraph of Article 19(1) TEU’. That Treaty provision imposes an obligation on Member States to provide an effective remedy for everyone whose rights and freedoms guaranteed by EU law are violated, corresponding to that laid down in the first paragraph of Article 47 of the Charter. It includes a right to challenge before a court any act adversely affecting a person that is liable to infringe those rights and freedoms, but it does not require the availability of a direct remedy with the principal object of impugning the validity of a particular measure. It is therefore sufficient that one or more legal remedies are available before the competent national courts to enable the holder of that right to obtain an indirect review of the legality of a measure ensuring respect for the rights and freedoms EU law guarantees to that person. (53) In the instant proceedings, it is a matter for the referring court to determine whether persons under investigation may challenge indirectly the legality of a decision by which a handling EDP summoned a third party to appear as witness.

58. Irrespective of the existence of that possibility, in order to provide a complete answer to the questions asked by the referring court, the Court must also indicate whether the procedures described in the order for reference comply with the principles of equivalence and effectiveness, to which the first paragraph of recital 88 of the EPPO Regulation expressly refers.

59. According to settled case-law, in the absence of EU rules on the matter, it is for the legal order of each Member State to establish procedural rules for actions intended to safeguard the rights of individuals, in accordance with the principle of procedural autonomy. That requirement is subject to the condition that those rules are not, in situations covered by EU law, less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness). (54)

60. As regards the principle of effectiveness, EU law does not require Member States to establish remedies other than those that exist at national law, unless it is apparent from the overall scheme of the legal system in question that no remedy exists that would make it possible to ensure, even indirectly, respect for the rights that individuals derive from EU law, or that the sole effective means to access a court is for individuals to break the law. (55) Should the referring court find that the validity of the impugned measures may be effectively adjudicated upon by indirect means, there would appear to be no grounds to find that the procedures described in the order for reference breach the principle of effectiveness.

61. As for the principle of equivalence, the information provided by the referring court indicates that, while the national procedural rules applicable to the EPPO preclude a possibility for direct judicial review of a decision by which an EDP summonses a third party to appear as a witness, an equivalent decision taken under the Code of Criminal Procedure may be the subject of an appeal to the investigating judge or to a higher court. It follows that persons under investigation appear to be in a different, and disadvantageous, position when they assert rights that flow directly from EU law as compared to when they assert rights under the Code of Criminal Procedure. In those circumstances, it seems, as both the referring court and I.R.O. and F.J.L.R. contend, that the procedures described in the order for reference infringe the principle of equivalence.

62. The EPPO and the Spanish Government admittedly contest the referring court’s interpretation of national law, arguing, in essence, that, according to certain domestic case-law, Article 311 of the Code of Criminal Procedure, which provides that decisions to adopt investigation measures sought by the parties may not be the subject of an appeal, may apply. In response, it is sufficient to recall that, according to settled case-law, it is not for the Court, in the context of a reference for a preliminary ruling, to rule on the interpretation of national law or to decide whether the referring court’s interpretation of its provisions is correct, as that matter falls within the exclusive jurisdiction of national courts. (56)

63. I therefore advise the Court to answer the questions the Juzgado Central de Instrucción n° 6 de la Audiencia Nacional (Central Court of Preliminary Investigation No 6 of the National High Court, Spain) referred for a preliminary ruling as follows:

Article 42(1) of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, the second subparagraph of Article 19(1) TEU and the principles of equivalence and effectiveness,

must be interpreted as precluding national legislation pursuant to which persons who are the subject of an investigation by the European Public Prosecutor’s Office may not directly challenge before a competent national court a decision by which, in the context of that investigation, the European Delegated Prosecutor handling the case summonses third parties to appear as witnesses where that decision is intended to produce legal effects vis-à-vis those persons. That issue is for the national court to determine by ascertaining whether such a decision is an act intended to produce legal effects binding on and is capable of affecting the interests of those persons by bringing about a distinct change in their legal position. To that end, the national court must examine the substance of the decision and assess its effects in the light of objective criteria, such as its content, taking into account, as appropriate, the context in which it was made and the powers of the body that adopted it.

2 Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the [EPPO] (OJ 2017 L 283, p. 1) (‘the EPPO Regulation’). The EPPO Regulation was adopted through enhanced cooperation under Article 86 TFEU. When used in the regulation, the term ‘Member State’ normally refers to participating Member States (Article 2(1) of the EPPO Regulation).

6 Under Article 13(1) and Article 28(1) of the EPPO Regulation, the EDP responsible for investigations and prosecutions that he or she has initiated, those allocated to him or her or those he or she has taken over using the right of evocation (‘the handling EDP’), may, in accordance with that regulation and the law of the relevant Member State, either undertake an investigation and other measures or instruct the competent authorities in the relevant Member State to do so (see, to that effect, judgment of 21 December 2023, G. K. and Others (European Public Prosecutor’s Office), C-281/22, EU:C:2023:1018, paragraph 43).

8 To which the second paragraph of recital 88 of the EPPO Regulation also refers.

10 Spanish legislation created the office of the judge of guarantees in order to exercise judicial control over the EPPO’s activities as an investigator (see point 36 of the present Opinion).

11 Article 42(1) of the EPPO Regulation also confers jurisdiction on national courts to review a failure by the EPPO to adopt a procedural act that it is required to make under that regulation and which is intended to have such effects. The present case does not involve the exercise of that jurisdiction.

13 Offence referred to in Article 308 or, where applicable, Article 306 of Ley Orgánica 10/1995 del Código Penal (Criminal Code) of 23 November 1995 (BOE No 281 of 24 November 1995, p. 33987).

14 The order for reference mentions 9 June 2021. From the observations of the Spanish Government and of the EPPO it appears that the order is dated 9 June 2022.

15 On the basis, respectively, of Article 308 or, where applicable, Article 306 of the Criminal Code and Articles 390 and 392 of that Code.

17 The referring court relies on Article 410 of the Code of Criminal Procedure, which provides that ‘[a]ll persons residing on Spanish territory, whether [Spanish] nationals or foreign nationals, who are not precluded from doing so, are obliged to appear, in response to a judicial summons which complies with the formalities laid down by the law, to state everything they know with regard to the questions put to them.’ It adds that, under Article 420 of that code, if the person summoned as a witness fails to appear, he or she may be fined or detained for the offence of obstruction of justice.

18 The referring court refers to Article 433 of the Code of Criminal Procedure, paragraph 2 of which provides that ‘[w]itnesses who have reached the age of majority shall swear an oath or solemnly promise to state everything that they know in response to the questions posed and the judge is required to inform them, in clear and intelligible language, of their obligation to speak truthfully and of the possibility of committing the offence of perjury in criminal proceedings’.

19 Article 766(1) of the Code of Criminal procedure provides that ‘[t]he decisions of the investigating judge and of the criminal judge, which are not exempt from appeal, may be subject to an action to vary the decision or an appeal …’.

20 Judgment of 13 October 2022, Baltijas Starptautiskā Akadēmija and Stockholm School of Economics in Riga (C-164/21 and C-318/21, EU:C:2022:785, paragraphs 32 and 33 and the case-law cited).

22 According to settled case-law, in the Article 267 TFEU procedure it is for the Court of Justice to provide a national court with an answer that will be of use to it and which will enable it to decide the case before it. To that end, the Court should, where necessary, reformulate the questions referred (Judgment of 30 January 2024, Direktor na Glavna direktsia ‘Natsionalna politsia’ pri MVR - Sofia (C-118/22, EU:C:2024:97, paragraph 31 and the case-law cited)).

23 The Spanish Government proposes to reformulate the questions by answering the first two questions as one and the last two questions together. In the light of my advice as to the admissibility of the second question, that approach seems untenable.

27 Section IV of the preamble to Law 9/2021. Article 8 of Law 9/2021 provides that ‘[w]ithin the framework of the procedure governed by [Law 9/2021]’, the judge of guarantees has jurisdiction to ‘rule on appeals against the decisions of the [EDP]’.

28 Herrnfeld, H.-H., Brodowski, D. and Burchard, C. observe that ‘paragraph 1 [of] Article 42 of the EPPO Regulation should be interpreted as not only awarding a competence to the Member State to exercise judicial review “in accordance with the requirements and procedures laid down by national law”, but interpreted in the light of Article 47 of the Charter and Article 19(1) TEU, requiring Member States to ensure a level of protection that is (at least) equivalent to the judicial protection which the [Court] would provide under Article 263 TFEU if the EPPO Regulation had not “transferred” this responsibility to the national courts instead’ (European Public Prosecutor’s Office, Article-by-Article Commentary, Nomos, Baden-Baden, 2021, p. 420).

30 Judgment of 19 December 2019, Deutsche Umwelthilfe, (C-752/18, EU:C:2019:1114, paragraph 34 and the case-law cited).

31 See, to that effect, judgment of 21 December 2023, AUTOTECHNICA FLEET SERVICES (C-278/22, EU:C:2023:1026, paragraph 39 and the case-law cited).

34 In accordance with Articles 263 and 265 TFEU. Article 86(3) TFEU provides that Council regulations to establish the EPPO should determine, inter alia, ‘the rules applicable to the judicial review of procedural measures taken by [the EPPO] in the performance of its functions’. Recital 86 of the EPPO Regulation, referring to that provision, states that the competence granted to the EU legislature ‘reflects the specific nature of the tasks and structure of the EPPO, which is different from that of all other bodies and agencies of the Union and requires special rules regarding judicial review’. By Article 42(1) of the EPPO Regulation, the Council considered it appropriate to entrust national courts with jurisdiction to judicially review EPPO procedural acts in view of that body’s hybrid nature and the fact that it operates to a large extent on the basis of national law when it carries out investigations and takes other measures (see, on that last point, Articles 30 and 31, and the first and second paragraphs of recital 87 of the EPPO Regulation). As the Commission’s written observations submit, the EU legislature considered that ‘that system was more coherent and worked better, given that, pursuant to Article 86(2) TFEU, the [EPPO] brings criminal proceedings before the competent courts of the Member States’. It has the further advantage of avoiding ‘dividing judicial control between the EU Courts during the investigation and the national courts during the trial, while taking into account the fact that such control is exercised in accordance with Regulation 2017/1939 and EU law, supplemented, to a large extent, by national procedural rules’.

35 Including by way of jurisdiction to give preliminary rulings under Article 267 TFEU (see Article 42(2) of the EPPO Regulation).

36 Article 42(3) of the EPPO Regulation exempts from paragraph 1 EPPO’s decisions to dismiss a case in accordance with Article 39. As for the possibility for privileged applicants to challenge EPPO’s procedural acts before the Court, see recital 89 of the EPPO Regulation. See also Article 42(2)(a) of the EPPO Regulation, which confers jurisdiction on the Court to give preliminary rulings under Article 267 TFEU on the validity of EPPO’s procedural acts, in so far as such a question is raised before a national court on the basis of EU law.

37 See also the references to Article 263(4) TFEU in Article 42(3) and (8) of the EPPO Regulation.

38 That expression also makes it possible to distinguish between EPPO procedural acts that fall within the scope of Article 42(1) of the EPPO Regulation, and therefore amenable to review by national courts, and EPPO acts that are not intended to produce legal effects vis-à-vis third parties. The third paragraph of recital 87 of the EPPO Regulation clarifies that national courts are entitled, but not obliged, to exercise judicial control of the latter in accordance with their domestic law.

39 The legal literature appears to share that view: by way of example, see Herrnfeld, H.-H., Brodowski, D. and Burchard, C., op. cit., pp. 409-410, and Luchtman, M., Forum Choice and Judicial Review Under the EPPO’s Legislative Framework, in Geelhoed, W., Erkelens, L. and Meij, A. (eds.), Shifting Perspectives on the European Public Prosecutor’s Office, Asser Press, The Hague, 2018, p. 165.

40 See, in particular, the second paragraph of recital 87 of the EPPO Regulation, which refers to ‘[p]rocedural acts that relate to the choice of the Member State whose courts will be competent to hear the prosecution’, and Article 42(3) thereof, which refers to ‘the decisions of the EPPO to dismiss a case’.

42 Judgment of 18 June 2024, Commission v SRB (C-551/22 P, EU:C:2024:520, paragraph 65 and the case-law cited).

43 In my view, the concept of ‘investigado’ (person under investigation) in Spanish law is equivalent to that of ‘suspect’.

44 As the EPPO and the French Government state in their observations, according to the Court’s case-law, where a non-privileged applicant brings an action for annulment against a measure that has not been addressed to it, the requirement that any binding legal effects of that measure are capable of affecting the applicant’s interests by bringing about a distinct change in its legal position overlaps with the condition in the fourth paragraph of Article 263 TFEU that that act must be of direct and individual concern to that person (judgment of 13 October 2011, Deutsche Post and Germany v Commission, C-463/10 P and C-475/10 P, EU:C:2011:656, paragraph 38). In my view, the same approach applies to Article 42(1) of the EPPO Regulation.

45 The EPPO submits that Y.C.’s witness statement was not the basis for the imputation of the alleged offences to I.R.O. and F.J.L.R. If the handling EDPs were to collect new incriminating evidence against them from a further witness statement from Y.C., their legal position as persons under investigation would remain unchanged. The Commission submits that a witness summons is a purely preparatory act. A witness statement consists of alleged facts that are unlikely to produce a binding effect that would change a suspect’s legal position. A binding legal effect is created at a later stage in the proceedings when, after indictment, the person’s status changes from that of suspect to an accused person; and, ultimately, upon that person’s conviction or acquittal.

46 See also the procedural rights that Article 41 of the EPPO Regulation guarantees to suspects and to accused persons.

48 Opinion of Advocate General Ćapeta in G. K. and Others (European Public Prosecutor’s Office) (C-281/22, EU:C:2023:510, point 20).

49 Opinion of Advocate General Bobek in Asociaţia ‘Forumul Judecătorilor din România’ and Others (C-83/19, C-127/19, C-195/19, C-291/19 and C-355/19, EU:C:2020:746, point 197).

50 The referring court rejects the EDPs’ argument based on Article 29 of Law 9/2021, which concerns, in any event, a situation that has no bearing upon this reference, namely that of persons under investigation who are belatedly summoned to appear at a first hearing for the communication of facts and proofs. The written observations filed by EPPO, the French and Spanish Governments and the Commission do not challenge the referring court’s premiss.

51 In the same vein, the Spanish Government’s written observations state that Article 42(1) of the EPPO Regulation does not require that judicial review of EPPO’s procedural acts must take place immediately after their adoption and/or before their implementation.

52 By recital 12 of the EPPO Regulation: ‘… Since the objectives of this Regulation, namely, to enhance the fight against offences affecting the financial interests of the Union by setting up the EPPO, … can … be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives and ensures that its impact on the legal orders and the institutional structures of the Member States is the least intrusive possible’.

53 See, to that effect, judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters) (C-245/19 and C-246/19, EU:C:2020:795, paragraphs 47, 55, 57 to 59, 64, 67 and 79 and the case-law cited).

54 Judgment of 20 June 2024, Artemis security (C-367/23, EU:C:2024:529, paragraph 25 and the case-law cited).

55 Judgment of 21 December 2021, Randstad Italia (C-497/20, EU:C:2021:1037, paragraph 62 and the case-law cited).

56 Judgment of 3 July 2019, UniCredit Leasing (C-242/18, EU:C:2019:558, paragraph 47 and the case-law cited).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> EPPO (Controle juridictionnel des actes de procedure) (Judicial cooperation in criminal matters - European Public Prosecutor's Office - Opinion) FR [2024] EUECJ C-292/23 (04 October 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C29223.html Cite as: [2024] EUECJ C-292/23

Court of Justice of the European Communities (including Court of First Instance Decisions)