This Op-ed intends to briefly analyse the recent Opinion by Advocate General (‘AG’) Collins in EPPO v I.R.O F.J.L.R. (C‑292/23) –a seminal preliminary ruling case being the first case ever concerned with the scope and nature of judicial review of procedural acts produced by the EPPO.
The most important facts of the case could be stated briefly. 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. 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 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. On 20 April 2021, that court initiated a criminal investigation against I.R.O. In the context of that investigation, on 21 May 2021, the Juzgado de Primera Instancia e Instrucción n° 1 de Getafe interrogated I.R.O. as a person under investigation. I.R.O. exercised his right to remain silent. On 2 July 2021, that court examined Y.C. as a witness. The competent European Delegated Prosecutor (‘EDP’) having assumed jurisdiction in the course of the investigations, summoned through decision of 2 February 2023 Y.C. and I.M.B. to appear before them as witnesses. Relying on relevant provisions of Spanish law, lawyers representing I.R.O. and F.J.L.R. lodged an appeal on 7 February 2023 against that decision with the EPPO in so far as it had summoned Y.C. to appear as a witness. They submitted that investigation measure was neither relevant, necessary, nor useful, since the Juzgado de Primera Instancia e Instrucción n° 1 de Getafe had already heard Y.C. in that capacity.
In light of this, 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), stayed proceedings and asked the Court of Justice (or ‘the Court’) through the preliminary ruling procedure to rule on whether Article 42(1) of the EPPO Regulation precludes national legislation pursuant to which persons under investigation may not directly challenge before a competent national court a decision by which the handling EDP summonses third parties to appear as witnesses in the context of that investigation.
AG Collins opined that the key issue is 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. The AG suggests that Article 42(1) of the EPPO Regulation aims to confer jurisdiction on national courts to review acts which would otherwise come within the exclusive jurisdiction of the EU Courts. The AG argues that this expression must be given an autonomous meaning to ensure a consistent division of jurisdiction between national courts and EU Courts in the exercise of judicial control over the EPPO’s acts.
The AG contends that the expression ‘procedural acts’ encompasses those ‘undertaken by the EPPO during its investigations’ which includes, but is not limited to, ‘investigation measures’ within the meaning of Article 30 of the EPPO Regulation. Consequently, a decision by which an EDP summonses a person to appear as a witness is a ‘procedural act’ for the purposes of Article 42(1) of the EPPO Regulation. As regards the expression ‘that are intended to produce legal effects vis-à-vis third parties’, it can be deduced that the legislator’s intention in enacting Article 42(1) was to ensure that acts of the EPPO 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 under Article 263(1) TFEU. This suggests that a procedural act by the EDP intending 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.
The AG, however advised 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 the third party concerned by bringing about a distinct change in their 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 considering, as appropriate, the specific procedural context in which it was made and the powers of the body that adopted it.
Comments
This is a quite important opinion, which, nonetheless is quite ambiguous in its conclusions. I have three minor reflections.
First, on the face of it, it seems absolutely correct to claim that the expression in the EPPO Regulation ‘acts intended to produce legal effects’ is given an autonomous meaning in EU law to ensure uniformity in the application and interpretation of the EPPO Regulation. Although the EPPO Regulation certainly is not aimed at harmonising national procedurals laws, it seems clear that the expression must be interpreted in light of the purpose, aim and content of the EPPO Regulation and other principles of EU law. Secondly, in terms of the meaning of the expression, it seems apparent from the aim and objective of the EPPO Regulation that the acts of the EPPO in general should be subject to judicial review by national courts where review before the EU Courts are not possible to pursue. The system of EU law on remedies have always intended to ensure that there exists a complete system of remedies to ensure that national courts or EU Courts can ensure the legality of the acts adopted by the EU institutions and the Member States (e.g., Les Verts).
On substance it does seem plausible to argue that a procedural decision by a prosecutor to summon a witness is an intermediate decision that generally do not produce legal effects towards one of the parties. Following Article 86(3) TFEU, it is 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. Member States should thus 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 cost. It seems equally compelling to argue, as the Advocate General does, that 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 should guide the interpretation of Article 42(1) of the EPPO Regulation. According to that provision and the case law (e.g. Commission v SRB, para. 65) an action for annulment may be brought against all measures or acts the EU institutions, bodies, offices and agencies adopt, which are intended to produce legal effects binding on and can affect the interests of a natural or legal person by bringing about a distinct change in their legal position.
The defendants had argued that the decision of 2 February 2023 was an EPPO procedural act that produces legal effects for them, as persons under investigation, since (a) it infringed 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 the defendants.
The argument advanced by the defendants is not convincing. The examination of a witness may as suggested by the Advocate General 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 that such an examination may well have as its sole purpose to clarify certain facts, to explain a complex mechanism to the investigator or to shed light on the personality of the persons concerned and in general facilitate the conduct of an investigation contribute to the thorough investigation of allegation. On substance, it does not seem compelling to claim that the decision to summon a witness is a ‘procedural act intending to produce legal effects vis-á-vis third parties’.
To conclude, this case underlines the incomplete but slowly emergent system of EU remedies against actions of the EPPO-a system which is still very much reliant on national law and procedures. It is also apparent that the attempts to offer a uniform interpretation of the EPPO Regulation is jeopardised by different practices, different designs and case law from national courts on the scope of judicial review in national proceedings conducted by the EPPO Regulation (Mitsilegas). Contrary to the opinion of the Advocate General I would thus strongly recommend, in the name of uniformity, the Court of Justice to take the opportunity to clarify the meaning of ‘procedural acts intended to produce legal effects’ and following the analysis here rule that a decision to summons a witness, following the Court of Justice’s own case law on standing, is not a decision which strictly changes the legal position of the defendant. This would contribute to providing for a stronger and more coherent EU law system of remedies giving important guidance for prosecutors and national courts involved in interpreting the EPPO Regulation.
