The seminal ruling of the Court of Justice in G.K.
e.a addresses one of the key elements of the EPPO Regulation which is the mechanism for cross-border cooperation between European Delegated Prosecutors (EDPs)
The seminal ruling of the Court of Justice in G.K. e.a (Parquet européen)2 addresses one of the key elements of the EPPO Regulation3 which is the mechanism for cross-border cooperation between European Delegated Prosecutors (EDPs). This mechanism is designed to enable prosecutors in different Member States to cooperate in an effective manner limiting judicial authorisation for investigation measures undertaken in a certain State at the request of an EDP in a different State to one instance only (‘single judicial authorisation’).4 However, the wording of the EPPO Regulation is far from conclusive on this aspect Article 31 being in reality an awkward compromise balancing Member States’ views on the scope of judicial review of assigned investigation measures in cross-border cases.5
To address these concerns, the EPPO College adopted a decision in 2022 containing guidelines on the application of Article 31 of the Regulation rejecting the notion of ‘single judicial authorisation’ accepting some form of judicial review in both the State of the
1. Professor in EU Law, University of Southern Denmark.
2. Judgment of 21 December 2023, C-281/22, G. K. and Others (Parquet européen), EU:C:2023:1018.
3. Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) [2017] OJ L 283/1.
4. Ibid, recital 72.
5. H. H. Hernfeld, ‘Efficiency contra legem? Remarks on the Advocate General’s Opinion Delivered on 22 June 2023 in Case C-281/22 G.K. and Others (Parquet européen)’, (2023) Eurocrim 229, available here, pp. 233-235.
handling EDP and the State of the assisting EDP. 6 The EPPO College argued that the notion of a ‘single judicial authorisation’ would create a serious legal gap because competent judicial authorities would not be able to assess the substantive reasons of the measure thus potentially infringing 47 of the EU Charter due to the absence of sufficient legal remedies.7
This significant provision of the new EPPO Regulation was put to test before the national courts at the case at hand. In the ruling of the Court of Justice at issue, a German EDP, had opened an investigation into large-scale tax fraud where BOD, as well as its directors, G.K. and S.L., were being prosecuted for having imported into the EU biodiesel of US origin by infringing, by means of false declarations, customs legislation and causing damage allegedly amounting to EUR 1 295 000. Within the context of this investigation an Austrian assisting EDP was tasked with ordering searches and seizures at the business premises of B.O.D. and its parent company and at the homes of G.K. and S.L., all located in Austria thus requesting the Austrian courts to authorise those measures which those courts agreed to. G.K., B.O.D. and S.L. subsequently brought actions before the Oberlandesgericht Wien, the referring court, against the decisions of the Austrian courts authorising the measures at issue.8 In light of this, the referring court asked the Court of Justice whether the EPPO Regulation should be construed to mean that the review conducted in the State of the assisting EDP where an assigned investigation measure requires judicial authorisation may relate both to matters concerning the justification and adoption of that measure and to matters concerning its enforcement.
Advocate General Ćapeta presented two different options that had been discussed during the EPPO negotiations on how the cross-border mechanism in Article 31 of the Regulation should be designed
6. See Decision of the College of European Public Prosecutor’s Office of 26 January Adopting Guidelines of the College of the EPPO on the Application of Article 31 of Regulation (EU) 2017 /1939, paras. 6-11, 13-23.
7. Ibid.
8. C-281/22, G. K. and Others (Parquet européen), paras. 26-37.
Advocate General Ćapeta presented two different options that had been discussed during the EPPO negotiations on how the cross-border mechanism in Article 31 of the Regulation should be designed. The Austrian and German Governments argued that if the assisting EDP’s national law requires prior judicial authorisation for carrying out an investigative measure such authorisation should entail a full review not only of the procedural but also substantive aspects justifying the measure in the first place (Option 1). The EPPO, the Commission and several other Member States suggested another reading with a clear distinction of the responsibilities of judicial authorities suggesting that if the law of the assisting EDP’s Member State requires a judicial authorisation of an investigative measure such an authorisation may entail only a review of the formal aspects relating to the execution of the measure (Option 2). The AG made a careful reading of the wording, context and history of Article 31 arguing that Option 1 would undermine the objectives of the EPPO Regulation which is to create an efficient system in the fight against crimes affecting the EU’s financial interest. The AG argued that the Court should choose Option 2 entailing that Article 31(3) of the Regulation should be construed as allowing the court of the Member State of the assisting EDP to review only the aspects related to the execution of a measure while accepting the assessment by the handling EDP that the measure is justified.9 The AG responded to the concerns that such an approach might entail less effective fundamental rights protections for defendants by arguing that the EPPO Regulation overall entails a high protection of fundamental rights at least at the level of the Charter of Fundamental Rights and the European Convention of Fundamental Rights. Even if it does not provide for the possibility of a refusal of the handling EDP’s decision that it is necessary to undertake an investigation measure in another EU Member State, it contains various safeguards guaranteeing the protection of fundamental rights.10
According to the Court the EPPO regulation aimed to establish a mechanism ensuring a degree of efficiency of cross-border investigations conducted by the EPPO as high as that resulting from the application of the procedures laid down under the EU system of judicial cooperation in criminal matters. 11 The Court noted that the distinction in the EPPO Regulation between the justification and adoption of an assigned investigation measure and its enforcement reflects the logic underlying the system of judicial cooperation in criminal matters which is based on the principle of mutual trust. An interpretation of the Regulation according to which the grant of the judicial authorisation would be subject to an examination by the competent authority of the State of the assisting EDP of the elements relating to the justification and adoption of the assigned measure concerned would undermine the objective pursued by the EPPO Regulation. To carry out such an examination, the competent authority of the State of the assisting EDP would have to examine the entire case file, which would have to be forwarded to it and translated. Moreover, since the justification of an assigned investigation measure fall within the scope of the law of the State of the handling EDP the authorities of the State of the assisting EDP would have to apply the law of the
9. See Opinion of AG Ćapeta, of 22 June 2023, C-281/22, G. K., and others. paras. 71-73.
10. Opinion of AG Ćapeta, paras. 99-101, 114-115.
11. Also referring to other relevant rulings in the area of judicial cooperation in criminal matters, see eg Judgment of 16 December 2021, C-724/19, Spetsializirana prokuratura EU:C:2021:1020, para. 53.
first State. All this led the Court to conclude that any review of the judicial authorisation required under the law of the State of the assisting EDP may only related to elements connected with the enforcement of the measure. It was nonetheless for the State of the handling EDP to provide for a prior judicial review of the conditions relating to the justification of an assigned investigation measure in light of the Charter of Fundamental Rights.12 In respect of measures which seriously interfere with fundamental rights such as searches of private homes and intrusive measures relating to personal property and asset freezing13 the State of the handling EDP must provide for sufficient safeguards to ensure the legality of such measures.14 The Court also noted that the EPPO in all its activities must respect the right to a fair trial and the rights of defence of suspects and accused persons,15 who are, at a minimum, to have the procedural rights provided for in EU law.16
The judgment requires some observations.
First, the ruling suggests that the notion of single judicial authorisation17 has been dealt a blow as we now always will have two forms of judicial control in a cross-border EPPO investigation: one prior on the merits in the State of the handling EDP and one formal in the State of the assisting EDP.18 In principle, the Court largely followed the Opinion by AG Ćapeta to the extent that the review conducted in the State of the assisting EDP where a measure requires judicial authorisation may relate only to matters concerning the enforcement of that measure.19 Nonetheless, the Court did not fully accept the AG’s premise that the assisting EDP must accept the assessment by the handling EDP that the measure is justified regardless of whether the latter is approved by prior judicial authorisation in the State of the handling EDP. In this instance, the Court underlined that the State of the handling EDP must provide for a prior judicial review of the conditions relating to the justification of an assigned measure.20
The ruling suggests that the notion of single judicial authorisation has been dealt a blow as we now always will have two forms of judicial control in a cross-border EPPO investigation
12. Art. 51 of the Charter.
13. EPPO Regulation (n 2), Arts. 30(1)(a) and (d).
14. C-281/22, G. K. and Others (Parquet européen), paras. 43-73.
15. See EPPO Regulation, Arts. 41 and 42.
16. C-281/22 G. K. and Others (Parquet européen), EU:C:2023:510, para. 75.
17. EPPO Regulation (n 2), recital 72.
18. N, Franssen, ‘The judgment in G.K. e.a. (parquet européen) brought the EPPO a pre-Christmas tiding of comfort and joy but will that feeling last?’, European Law Blog, Blogposts 1/2024, 15 January 2024. Available here.
19. C-281/22 G. K. and Others (Parquet européen), EU:C:2023:510, Opinion by AG Ćapeta.
20. C-281/22 G. K. and Others (Parquet européen), paras. 73-74.
A joint reading of Articles 31(2) and 31(3) do not unequivocally express that there is a distinction of responsibilities where justification for an assigned investigative measure lies with the handling EDP and enforcement of the measure rests with the assisting EDP
Leaving this aside for the moment, is the Court’s reading of the Regulation justified on the merits? From both a contextual and literal perspective of Article 31, the Court’s ruling takes an awkward position since limiting review by assisting EDPs to review of enforcement makes Article 31(3) of the Regulation largely superfluous. According to the Court’s reading of Article 31, it would always be clear that it is the law of the handling EDP’s State that regulates the need for judicial authorisation of a specific investigative measure. Article 31(3) only makes sense if it changes the rule expressed in Article 31(2) in a situation when the law of the State of the assisting EDP also requires judicial authorisation.21 On this point the AG however contended that Article 31(3) can be given a meaning as expressing the choice of the applicable legal order specifically for judicial authorisation of an assigned measure, even if the same result would be reached by applying Article 31(2). Expressing this rule separately might have been perceived as necessary due to the difficulties that that precise issue presented during the negotiations.22
Nonetheless, it appears that a joint reading of Articles 31(2) and 31(3) do not unequivocally express that there is a distinction of responsibilities where justification for an assigned investigative measure lies with the handling EDP and enforcement of the measure rests with the assisting EDP. There is some support in Article 31(2) which states that the ‘justification and adoption of such measures shall be governed by the law of the Member States’ of the handling EDP, but nothing is explicitly prescribed about the enforcement. It rather seems that when Article 31(3) of the Regulation speaks of ‘judicial authorisation for the measure’ …. ‘required under the law of’ the State of the assisting EDP it also refers to the substantive aspects of the measure.
21. Opinion of AG Ćapeta, para. 47.
22. Opinion of AG Ćapeta, para. 70.
The legislative history for the EPPO Regulation is inconclusive on this aspect. According to the Austrian Government, it was clear from that history that most of the Member States were aware of the problems that would arise due to the conflicting relationship between the second and third paragraphs of Article 31. However, the joint proposal of the Austrian and German Governments that the problem be resolved by recourse to the mutual recognition model was not accepted in the final text of the EPPO Regulation. It is, therefore, clear according to them that Article 31(3) does not require the courts of the State of the assisting EDP to recognise the decision of the handling EDP that an investigative measure in the State of the assisting EDP is necessary. Rather, that provision requires the court of the State in which the measure is to be executed to check the legality of the measure, including its justification.23 The Commission’s original 2013 proposal had suggested that authorisation for assigned measures would only be required by the competent judicial authority of the State where they are to be carried out; ie the State of the assisting EDP.24 At the hearing, the Commission justified its new amended position explaining that the 2013 Proposal was drafted before the EIO Directive came into force. That Directive provides that the justification for a cross-border investigation measure is a matter for the issuing State and may only be challenged in the courts of that State and Commission admitted that that solution had proved to function well in practice.25
Nonetheless on principled terms, it seems that the Court’s solution makes sense. Given the objectives of the EPPO Regulation – which is primarily to enhance the effectiveness of cross-border proceedings – it would clearly have been very cumbersome to require full substantive judicial review of the assigned measure requiring authorisation in both the State of the handling EDP and the State of the assisting EDP. The EPPO should thus have at its disposal the tools necessary for achieving the objective of efficiently fighting crimes affecting the EU budget. In any case, cross-border investigations conducted by the EPPO could not be interpreted as being subject to conditions more burdensome than what is required under the EIO Directive. There are furthermore logistical difficulties of transferring and translating large amounts of documents that pertain to the file of the case. Moreover, entrusting the justification of the investigative measure to the law of the State of the handling EDP and the courts of that State is in line with the fact that those courts would have all the requisite material for a full substantive review. Finally, the proposed reading according to which the justification of the measure is always a matter for the law of the State of the handling EDP prevents conflicting decisions regarding the justification of the measure in cases where several States are involved in the gathering of evidence.26 Under the current version of the Regulation, assisting EDP’s judicial authorities must be conferred with certain judicial review powers.27 It is plausible to argue – with a lot of work being done by the 2nd sentence in Article 31(2) of the Regulation – that one could imagine a distinction being made between the enforcement and justification and adoption of the measure.28 This is a reasonable compromise between the idea of a ‘single judicial authorisation’ (with unconditional mutual trust and emphasis on effectiveness) and the respect of national legal diversity and fundamental rights.29
23. C-281/22 G. K. and Others (Parquet européen), Opinion by AG Ćapeta, paras. 60-62.
24. Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office COM (2013) 534 final, Art. 26 (4).
25. Opinion of AG Ćapeta, paras. 60-62.
26. See Opinion of AG Ćapeta, paras. 57-59.
27. See EPPO Regulation (n 2), Art. 31 (3).
28. See Opinion of AG Ćapeta, paras. 48-53.
29. See Art. 67(1) and 67(3), 82 TFEU listing these as fundamental objectives of the Area of Freedom, Security and Justice.
Not all participating Member States’s implementing legislation are in line with the ruling entailing that those States thus must review their legislation
What are the key implications of the ruling? First of it seems clear that not all participating Member States’s implementing legislation are in line with the ruling entailing that those States thus must review their legislation. Member States that had foreseen full judicial review by a court in the State of the assisting EDP,30 will need to limit that role to the enforcement of the investigation measure. Those States will also have to ensure that prior judicial review undertaken in the State of the handling EDP is recognised as a trustworthy form of judicial control on the merits of the case thus allowing the assigned measure to be carried out on their territory.31
The implications of the ruling may also put the EPPO in a difficult position in respect of its ongoing investigations and appeals following convictions where defence lawyers claim that the evidence has not been gathered in line with the procedure foreseen by the CJEU. The sensible proposal here is that the Commission propose to Member States to amend the EPPO Regulation to give more certainty for the delegated prosecutors and national courts in how to construe this provision. While it is possible to align the Court’s ruling with the wording of the EPPO Regulation,32 the text of the provision could be clarified on this aspect. The need for prior judicial review in the State of the handling EDP should be articulated clearly in the Regulation to ensure that practitioners can apply this provision in line with the ruling of the Court. Article 31 offers a crucial framework for cross-border cooperation between EDPs enabling the EPPO to operate effectively across borders in its fight against transnational crime against the EU’s financial interests.33
30. Austria and Germany for example.
31. See Franssen (n 12).
32. H. H. Herrnfeld, ‘Efficiency contra legem? Remarks on the Advocate General’s Opinion Delivered on 22 June 2023 in Case C-281/22 G.K. and Others (Parquet européen)’, (2023) Eurocrim 229, available here.
33. See Franssen (n 30).
This requires us to think more broadly on the EPPO Regulation and the potential need for EU harmonisation in this area. While the establishment of the EPPO is a welcome step towards a ‘federalisation’ of EU criminal law in the specific area of crimes against the EU budget,34 the EPPO cannot function effectively with some degree of harmonisation of national criminal procedures. The judgment at hand highlights the implications of this incomplete centralisation of national criminal procedures which makes it more cumbersome for the EPPO to fulfil its task of combating crimes against the EU’s financial interests effectively.35
The soundest proposal in this respect is to accept the idea of a ‘single judicial authorisation’, i.e., that an investigative measure only needs to be authorised and reviewed in one State and by one judicial authority. However, AG Ćapeta underlined in her opinion that this notion presumes the operation of the logic behind mutual recognition which do not function in the area of criminal law with the same logic as in the internal market context. The object of recognition here is sovereign individual decisions of Member States, where the monopoly of force of one Member State is put into service in another Member State and where individuals become the object (rather than the subject) of free movement between Member States.36 For mutual recognition thus to work in the field of EPPO’s crossborder cooperation, a high level of mutual trust is required since the EDPs have to rely for each cross-border situation on the laws of one of the Member States involved which are then to be trusted by the other Member State. That trust relates to the other State’s commitment and duty to protect the fundamental rights of the individual defendant involved in the cross-border proceedings.37
While the establishment of the EPPO is a welcome step towards a ‘federalisation’ of EU criminal law in the specific area of crimes against the EU budget, the EPPO cannot function effectively with some degree of harmonisation of national criminal procedures
34. E. Herlin-Karnell and C. Gomez Jara, ‘Prosecuting EU Financial Crimes: The European Public Prosecutor’s Office in Comparison to the US Federal Regime’, 19 German Law Journal (2018) p. 119
35. See J Öberg, ‘The European Public Prosecutor: Quintessential supranational criminal law?’ 28 (2021) Maastricht Journal of European and Comparative Law 164.
36. Lavenex, S, ‘Mutual recognition and the monopoly of force: limits of the single market analogy’, 14 Journal of European Public Policy (2007) p. 76; Öberg J. Trust in the Law? Mutual Recognition as a Justification to Domestic Criminal Procedure, 16 European Constitutional Law Review (2020), 33-62.
37. Opinion of AG Ćapeta, points 84, 87-89.
Considering all this, it is most appropriate to confer the responsibility for reviewing the authorisation of the investigative measure on the judicial authorities of the handling EDP which is in general the prosecutor managing the investigation. If no judicial authorisation is required for the measure, those duties should then fall on the judicial authorities in the State of the assisting delegated prosecutor to ensure that there is at least some form of judicial scrutiny.38 However, in the absence of harmonisation and the limits of mutual recognition in this area, fundamental rights of suspects and accused persons must be guaranteed in a context in which the EPPO borrows a variety of national substantive and procedural criminal rules, such as in the case of cross-border investigation. This follows from Article 42(1) of the EPPO Regulation which requires that judicial review of investigation measures is always available. Therefore, if there was no prior judicial review, or if the combined application of two legal systems (one for the justification of the measure and the other for its execution) led to some oversight in the protection of fundamental rights, a subsequent judicial review of the measure could serve as a correction to any potential violation.39
38. EPPO Regulation (n 2), recital 72.
39. See eg Opinion of AG Richard de la Tour in MM (C-414/20 PPU, EU:C:2020:1009, para 133) where he explained that effective judicial protection demands that the conditions under which an EAW was issued must be subject to review at the stage of the criminal proceedings subsequent to surrender if no remedy was provided for at an earlier stage.
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