Advocate-General presents his Legal Opinion in the Second Request for Preliminary Ruling concerning EPPO

The European Court of Justice (ECJ) has currently received a request for a preliminary ruling from a Spanish court (C-292/23) to clarify key questions regarding the legal protection of persons affected by investigations carried out by the European Public Prosecutor’s Office (EPPO). The ECJ’s response is eagerly awaited. Its interpretation of the relevant Art. 42 of the EPPO Regulation will point the way for how effectively affected persons can defend themselves against the EPPO in courts in the future. On 4 October 2024, Advocate-General Anthony Collins presented his legal opinion on the matter to the ECJ.

Background and course of proceedings

Since 2021, the EPPO has been investigating white-collar crime against the EU budget in 24 EU Member states. As a supranational authority with a special structure, it mainly acts by applying regulations of the respective member state conducting the proceedings. For this reason, and in the absence of special criminal jurisdiction at EU level, the European legislator has transferred the responsibility for judicial review of the measures of the EPPO to the member state courts. However, the ECJ remains responsible for interpreting EU law and the EPPO Regulation. In principle, affected parties must therefore first bring an action before the national courts, which in turn can refer questions relating to EU law to the ECJ if necessary. Art. 42 of the EPPO Regulation in conjunction with Art. 47 of the CFR and Art. 19 para. 1 of the TEU guarantee the affected person the right to effective legal protection against all measures that have an impact on their legal position. Furthermore, legal protection against such EPPO measures before the national courts must not be disadvantageous than against comparable measures by the respective national public prosecutor’s office (principle of equivalence).

The key issue raised by the Spanish court is whether the provisions of Spanish law are in line with these requirements. In the underlying proceedings, two board members of a foundation were being investigated on allegations of subsidy fraud. An employee (who may have been involved in the fraud) was questioned as a witness by the Spanish public prosecutor’s office. After the EPPO took over the proceedings, the European Delegated Prosecutor (EDP) once again ordered that this employee be summoned to testify. The two accused board members lodged an appeal against this witness summons, although Spanish law does not provide for the possibility of an appeal when an EDP summonses a witness – unlike in the case of national public prosecutors. The Spanish court seized was now confronted with the question of whether the provisions of Spanish law are compatible with the guarantees in Art. 42 para. 1 of the EPPO Regulation in conjunction with Art. 19 para. 1 of the TEU, Art. 47 CFR and the principles of effectiveness and equivalence under EU law. Due to its own doubts about the compatibility, it referred these questions to the ECJ by requesting a preliminary ruling.

Legal opinion of the Advocate-General

The Advocate-General first explains that Art. 42 para. 1 of the EPPO Regulation in conjunction with Art. 47 CFR in his opinion obliges the member states to provide effective judicial review against procedural acts of the EPPO with legal effects vis-à-vis third parties. The term “procedural act having legal effects vis-à-vis third parties” is to be interpreted autonomously under EU law (i.e. uniformly throughout the EU) and in the same way as Art. 263 TFEU. In accordance with the standards developed by the ECJ in this regard, the legal effect of a procedural act is to be determined on a concrete and individual basis according to objective criteria such as its content, context and the competences of the issuing institution. However, in the Advocate-General’s opinion, Art. 42 para. 1 of the EPPO Regulation does not oblige to the creation of a direct appeal against the measure itself. A review of the EPPO measure by indirect legal remedies (e.g. as an upstream question of the usability of collected evidence) could also fulfill the requirement of effective legal protection.

The decisive legal question for the Advocate-General in this specific case is therefore, whether the ordered summoning of the employee as a witness has such a legal effect vis-à-vis the accused board members. Only in this scenario, there would be a violation of Art. 42 of the EPPO Regulation, Art. 47 CFR and other principles of EU law. The Advocate-General argues against an abstract, general assessment and answer to the question by the ECJ. In his opinion it is the task of the national courts to determine the legal effect of individual procedural acts of the EPPO on the basis of the criteria developed by the ECJ under Art. 263 TFEU. The fact that a measure (e.g. a witness summons) could therefore be assessed differently in terms of its legal effect depending on each member state should be accepted as a consequence of the regulatory concept of the EPPO Regulation. If the specific measure under consideration has legal effect, Art. 42 of the EPPO Regulation itself does not require a direct legal remedy. However, the existing legal remedies must not be disadvantageous for the person concerned than against comparable measures by national authorities. The latter is not the case in the Spanish regulation, so that there is a violation of Art. 42 of the EPPO Regulation if, in the opinion of the Spanish court, the witness summons indeed has legal effect vis-à-vis the board members. The Spanish court’s questions therefore should be answered to the effect that the Spanish regulation on the non-appealability of the EDP`s witness summons is in breach of EU law if the latter has legal effect vis-à-vis third parties. However, the assessment of the legal effect vis-à-vis third parties must be carried out by the national court in accordance with the objective criteria developed by the ECJ in relation to Article 263 TFEU.

Assessment and conclusion

The commitment that Art. 42 para. 1 of the EPPO Regulation obliges the member states to provide effective legal remedies for procedural acts with legal effect vis-à-vis third parties is to be welcomed – but also to expect. These EPPO measures must always be subject to judicial review. Less pleasant is the restriction according to which EU law does not require the creation of direct legal remedies, but rather considers indirect review options to be sufficient. This shortens legal protection for affected persons if, for example, the legality of an EPPO measure can only be challenged in trial and the implementation of the measure must be accepted beforehand. The Advocate-General’s comments on this aspect appear to be open to different interpretations when he states in his final proposal that the Spanish regulation is in breach of EU law if the witness summons has legal effect vis-à-vis third parties and no direct legal remedy (“direct challenge before a national competent court”) is available under national law. According to his argumentation, the latter itself would not constitute a breach of EU law. Presumably, the Advocate-General however is only referring here to the infringement of the principle of equivalence found in the Spanish case (where a direct legal remedy exists in the case of measures by national authorities).

The proposal that the ECJ should not make an abstract and general assessment of the legal effect of procedural acts creates considerable legal uncertainty and application problems. One can only speculate as to the reasons for this. Perhaps the ECJ should not be overburdened by countless referrals on the legal effect of individual investigative measures. However, the view provokes numerous follow-up problems. On the one hand, shifting the assessment of legal effects of investigative measures to the national courts creates divergences between the member states. Secondly, the member state courts face the challenge of having to subsume under a concept of EU law (“legal effect vis-à-vis third parties”) while not being competent to interpret the legal concept itself.

The case law on Art. 263 TFEU is unlikely to provide much guidance here, as it mainly stems from antitrust law and administrative law proceedings conducted by OLAF (see Herrnfeld, EPPO, 1st ed. 2021, Art. 42 para. 34). However, investigative and procedural acts in criminal proceedings can have a much more frequent and intensive impact on the legal position of the persons concerned, which requires a higher degree of judicial review. If the national courts cannot interpret the concept of legal effect vis-à-vis third parties themselves, they are forced to make a referral. The ECJ must then nevertheless clarify the interpretation of the concept of legal effect with regard to specific procedural acts – which counteracts the idea of relieving the burden and avoiding specific statements by the ECJ on the legal effect of individual procedural acts. The concept even bears the risk of an additional burden for the ECJ because it provokes referrals from other member states regarding comparable procedural acts. In short: If the legal effect of witness summonses in Spain has been clarified by means of a referral, this interpretation cannot – according to the Advocate-General`s concept – be transferred to French witness summonses. Their legal effect would have to be clarified by a separate referral.