The procedural acts of the European Public Prosecutor’s Office (EPPO) that are capable of affecting the legal situation of the persons challenging them must be amenable to judicial review (CJEU)

According to the Judgment of the Court of Justice in Case C-292/23, the procedural acts of the European Public Prosecutor’s Office (EPPO) that are capable of affecting the legal situation of the persons challenging them must be amenable to judicial review. 

However, it is not mandatory for that review to take the form of a direct action, provided that it includes a verification that the rights and freedoms of the person concerned are observed.

The EPPO is an independent body of the European Union which is responsible for investigating, prosecuting and bringing to judgment the perpetrators of criminal offences affecting the financial interests of the European Union. 

It is organised at two levels: first, a central level, consisting of the Central Office at the seat of the EPPO, in Luxembourg, and, secondly, a decentralised level, consisting of European Delegated Prosecutors who are to be located in the Member States. 

The EPPO is conducting, in Spain, a criminal investigation for EU subsidy fraud. The European Delegated Prosecutors handling the case summoned two persons as witnesses. The persons who are the subject of the investigation challenged the summons to appear of one of the witnesses. 

The court responsible, in Spain, for the judicial review of investigation measures of the EPPO, has seised the Court of Justice. It indicates that the Spanish law permits judicial review only in certain cases expressly provided for, which do not include a witness summons. It considers, however, that that act is capable of producing legal effects vis-à-vis third parties. It considers, therefore, that it should be possible to exercise the review, which is provided for by EU law, [1] for this type of act in order to avoid an unjustified restriction of rights derived from EU law. 

In its judgment, the Court emphasises that it is for the competent national court to determine, after carrying out a concrete and specific examination, whether the witness summons is capable of affecting the legal situation of the persons who are the subject of the investigation. If that is the case, it must be subject to judicial review by the court. That requirement does not necessarily mean that that review must be made by way of a specific and direct action. It may also be carried out as an incidental question provided that the right to an effective remedy and to a fair trial as well as the presumption of innocence and the rights of the defence are guaranteed.

However, where a direct action is provided for in order to challenge an analogous decision of national authorities, the same possibility must exist as regards acts of the EPPO. (curia.europa.eu/photo freepik.com)

Full Text of the Decision is available here

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1 Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office.

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