First ECJ decision on the European Public Prosecutor’s Office and the scope of judicial review of EPPO investigation measures

In its judgment of December 21, 2023 (Case C-281/22), the European Court of Justice (ECJ) ruled for the first time on the Regulation (Council Regulation (EU) 2017/1939) establishing the European Public Prosecutor’s Office (EPPO). The ruling was eagerly awaited because the issues raised are of great practical relevance for criminal defense lawyers and the work of the EPPO. However, the decision is also of particular interest because an increasing number of EPPO criminal proceedings can be expected in the coming years and further questions of interpretation of national courts will reach the ECJ (currently the ECJ is dealing with a request for preliminary ruling in case C-292/23). How the court interprets the Regulation in its first decision, for example with regard to the rights of the accused, is therefore of a trend-setting nature.

Subject of the decision were cross-border investigations by the EPPO (acc. to Art. 31 of the Regulation). In these cases, the European Delegated Public Prosecutor (EDP) in charge of the investigation orders a measure (e.g. a search) in his member state, which is then enforced in another (executing) member state. The core issue raised is whether the courts of the executing member state may review the measure comprehensively, i.e. also with regard to material aspects such as suspicion or proportionality, if the measure requires judicial authorization under the law of that member state.

The ECJ answers this question in the negative and limits the scope of review by the courts in the executing member state to enforcement aspects, meaning that the person concerned only has very limited legal protection against the respective measure there. In order to partially mitigate this consequence, the ECJ instead demands that prior judicial review must take place in the ordering member state if the respective measures seriously interfere with the rights of the person concerned.

Background and course of proceedings

 The EPPO is designed as an indivisible institution of the European Union with a decentralized structure (see here: EPPO poses new challenges for criminal defense lawyers in the EU). Investigation proceedings are conducted at national level by so-called European Delegated Public Prosecutors (EDP). However, the EPPO does not have its own criminal procedural law. Instead, the underlying regulation often refers to the procedural law of the participating member states. Due to sometimes unsuccessful formulations, ambiguities arise in particular regarding the applicable law and legal protection options when – as it is naturally the case with cross-border investigations – several member states (and therefore procedural systems) are involved.

The proceedings on which the judgment is based are exemplary of this problem. The German European Delegated Public Prosecutor in charge had instructed his Austrian colleague to search the defendants‘ residential and business premises in Austria. In accordance with the requirements of Austrian law, the Austrian European Delegated Public Prosecutor applied for and received judicial authorization for this. In Germany, on the other hand, no judicial authorization was sought for the measures. The defendants later lodged an appeal against the measures in Austria, arguing, among other things, that the measures were not proportionate. As the court of appeal, the Vienna Higher Regional Court then referred three questions to the ECJ on Art. 31 and 32 of the EPPO Regulation, essentially asking whether and to what extent courts in the executing member state (in this case: Austria) may also review material aspects of the justification and ordering of the measure. The ECJ answered them in the manner described above, which is disadvantageous for the accused.

The decision of the ECJ

The ECJ initially shares the view expressed by others that the wording of Art. 31 and 32 of the EPPO Regulation neither clearly regulates the question of the competent court for judicial authorizations in cross-border investigations nor the scope of the review. Nevertheless, a clear division of competences between the ordering and supporting member state can be inferred from the standards: The order and justification (i.e. substantive aspects) are to be assessed by the authorities and courts of the issuing member state in accordance with the law of the issuing member state, while enforcement is to be assessed by the authorities and courts of the executing member state in accordance with the law of the latter. In support of this thesis, the ECJ draws comparisons with existing forms of judicial cooperation in criminal matters in Europe, such as the European Investigation Order or the European Arrest Warrant. These instruments are also based on the same division of competences between the participating member states.

However, efficiency considerations are decisive for the ECJ. It is in line with the declared aim of the EPPO Regulation to enable more efficient criminal prosecution at European level. If a substantive review competence of the courts in the executing member state were to be recognized, the desired efficiency would be impaired. It would also have the consequence that cooperation between European Delegated Public Prosecutors of the EPPO would be more demanding and therefore less efficient than existing instruments (such as the European Investigation Order). This would be tantamount to a “step backwards”. The restrictions on legal protection in the executing member state associated with this interpretation of the EPPO regulation should instead be compensated for by additional judicial review (for serious measures) in the issuing member state.

Assessment and conclusion

Although the ECJ’s decision against a substantive review competence by the courts in the executing member state is hardly surprising, the result and reasoning are clearly open to criticism. The supposedly clear division of competence between the ordering and executing member state is difficult to reconcile with the wording of Art. 31, 32 of the EPPO Regulation. The third subparagraph of Art. 31(3) of the EPPO Regulation would simply be superfluous if the jurisdiction of the issuing member state provided for therein already follows from Art. 31(2) of the EPPO Regulation – as assumed by the ECJ (for more details, also with regard to the English language version, see Pfister jurisPR-StrafR 5/2024 note 1).

The court’s interpretation also disregards the legislative history. The member states were explicitly unable to agree that all member states should provide for judicial review for certain measures in their procedural regulations. By introducing such an obligation, at least in the case of serious measures, the ECJ is substituting its own legal policy ideas for the legislative compromise. The latter is also the reason why Art. 31 EPPO Regulation deliberately avoids any reference to the concept of mutual recognition (see Herrnfeld, in: Herrnfeld/Brodowski/Burchard, EPPO, 1st ed. 2021, Art. 31 para. 6), because the provision made there cannot be compared with other instruments of judicial cooperation in criminal matters.

The denial of a substantive review competence also negates the fact that the EPPO is a single EU authority. The courts must review its actions on the basis of procedural law, which the EPPO Regulation declares to be relevant. The comparison with concepts that are based on the recognition of decisions from other member states is not convincing (see Pfister jurisPR-StrafR 5/2024 note 1 for more details). It should only be mentioned as a supplement that the judicial reviews provided for by the ECJ in the issuing member state do not guarantee equally effective legal protection for the person concerned. This is because, while he is familiar with the language and legal situation in the executing member state (usually his home state), this is unlikely to be the case in the issuing member state. This means that a lack of language and legal knowledge also effectively restricts legal protection.

Unfortunately, the ECJ’s decision is part of an unfortunate development regarding the rights of suspects in investigation proceedings, which is disproportionate to the principle of the presumption of innocence. Cross-border investigative measures in Europe are becoming increasingly less demanding and more efficient for investigators. However, they do not correspond with EU citizens‘ rights and the corresponding protective provisions for those affected (see also Pfister jurisPR-StrafR 5/2024 note 1). The latter will continue to be left to the member states, so that gaps in protection will inevitably arise.

Outlook

The decision has far-reaching implications for criminal defense. The person affected by a cross-border investigation measure of the EPPO cannot have its substantive legality (i.e. suspicion, proportionality, etc.) reviewed in the executing member state. Instead, they must take action against the measure in the state that issued the order. In the future, close cross-border cooperation on the part of criminal defense will therefore be necessary in order to have appropriate expertise available in the respective legal system in a timely manner and to remain capable of acting in the sense of effective legal protection for the person concerned (Pfister jurisPR-StrafR 5/2024 note 1).

How groundbreaking the decision is in the end will largely depend on how courts answer the follow-up questions arising from it. A key question will be, for example, which aspects are part of enforcement and can therefore continuously be challenged in the executing member state following the ECJ`s decision. The criteria that are developed to determine a “serious” interference with the rights of subjects and which, according to the ECJ’s concept, consequently require judicial review in the issuing member state will also be of significant practical relevance. In the absence of the latter, there is considerable potential for legal counsel to argue with regard to possible bans on the use of evidence.