8 April 2025 (*1)

(Reference for a preliminary ruling – European Public Prosecutor’s Office – Regulation (EU) 2017/1939 – Article 42(1) – Procedural measures intended to produce legal effects vis-à-vis third parties – Judicial review, by national courts, in accordance with the requirements and procedures provided for in national law – Scope – Witness summons – National law not permitting direct judicial review of such a measure – Second subparagraph of Article 19(1) TEU – Articles 47 and 48 of the Charter of Fundamental Rights of the European Union – Principles of equivalence and effectiveness)

In Case C‑292/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado Central de Instrucción nº 6 de Madrid (Central Court of Preliminary Investigation No 6, Madrid, Spain), made by decision of 26 April 2023, received at the Court on 3 May 2023, in the criminal proceedings against

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, T. von Danwitz, Vice-President, K. Jürimäe, C. Lycourgos, I. Jarukaitis, S. Rodin, A. Kumin, N. Jääskinen, D. Gratsias (Rapporteur) and M. Gavalec, Presidents of Chambers, E. Regan, I. Ziemele, J. Passer, Z. Csehi and O. Spineanu-Matei, Judges,

Advocate General: A.M. Collins,

Registrar: R. Stefanova-Kamisheva, Administrator,

having regard to the written procedure and further to the hearing on 10 September 2024,

after considering the observations submitted on behalf of:

the European Public Prosecutor’s Office (EPPO), by J.F. Castillo García, L. De Matteis, acting as Agents, and I. de Lucas Martín, Fiscal Europeo,

the Spanish Government, by A. Gavela Llopis and P. Pérez Zapico, acting as Agents,

the French Government, by R. Bénard, B. Dourthe and B. Fodda, acting as Agents,

the Italian Government, by G. Palmieri, acting as Agent, and by D.G. Pintus, avvocato dello Stato,

the Netherlands Government, by E.M.M. Besselink, M.K. Bulterman and A. Hanje, acting as Agents,

the European Commission, by J. Baquero Cruz, F. Blanc and H. Leupold, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 4 October 2024,

gives the following

This request for a preliminary ruling concerns the interpretation of Article 42(1) of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ 2017 L 283, p. 1), Article 7 of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016 L 65, p. 1), Article 2 and the second subparagraph of Article 19(1) TEU, Article 86(3) TFEU, as well as Articles 6, 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

The request has been made in criminal proceedings brought by the European Public Prosecutor’s Office (EPPO) against I.R.O. and F.J.L.R. who are the subject of an investigation by that body for acts of subsidy fraud and forgery of documents in connection with the financing of a project by the European Union.

Legal context

European Union law

Recitals 12, 30, 32, 83 and 85 to 89 of Regulation 2017/1939 state:

(12)‘(12)

In accordance with the principle of subsidiarity, combatting crimes affecting the financial interests of the Union can be better achieved at Union level by reason of its scale and effects. … Since the objectives of this Regulation, namely, to enhance the fight against offences affecting the financial interests of the Union by setting up the EPPO, cannot be sufficiently achieved by the Member States of the European Union, given the fragmentation of national prosecutions in the area of offences committed against the Union’s financial interests but can rather, by reason of the fact that the EPPO is to have competence to prosecute such offences, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives and ensures that its impact on the legal orders and the institutional structures of the Member States is the least intrusive possible.

…

The investigations of the EPPO should as a rule be carried out by European Delegated Prosecutors in the Member States. …

…

The European Delegated Prosecutors should be an integral part of the EPPO and as such, when investigating and prosecuting offences within the competence of the EPPO, they should act exclusively on behalf and in the name of the EPPO on the territory of their respective Member State. …

…

This Regulation requires the EPPO to respect, in particular, the right to a fair trial, the rights of the defence and the presumption of innocence, as enshrined in Articles 47 and 48 of the Charter. … The activities of the EPPO should thus be exercised in full compliance with those rights and this Regulation should be applied and interpreted accordingly.

…

The rights of defence provided for in the relevant Union law, such as Directive [2016/343] as implemented by national law, should apply to the activities of the EPPO. Any suspect or accused person in respect of whom the EPPO initiates an investigation should benefit from those rights, as well as from the rights provided for in national law to request that experts are appointed or that witnesses are heard, or that evidence on behalf of the defence is otherwise produced by the EPPO.

Article 86(3) TFEU allows the Union legislator to determine the rules applicable to the judicial review of procedural measures taken by the EPPO in the performance of its functions. That competence granted to the Union legislator reflects the specific nature of the tasks and structure of the EPPO, which is different from that of all other bodies and agencies of the Union and requires special rules regarding judicial review.

According to Article 86(2) TFEU, the EPPO exercises its functions of prosecutor before the competent courts of the Member States. Acts undertaken by the EPPO in the course of its investigations are closely related to the prosecution which may result therefrom, and thus have effects in the legal order of the Member States. In many cases the acts will be carried out by national law enforcement authorities acting under the instructions of the EPPO, in some cases after having obtained the authorisation of a national court.

It is therefore 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. This should ensure that the procedural acts of the EPPO that are adopted before the indictment and intended to produce legal effects vis-à-vis third parties (a category which includes the suspect, the victim, and other interested persons whose rights may be adversely affected by such acts) are subject to judicial review by national courts. Procedural acts that relate to the choice of the Member State whose courts will be competent to hear the prosecution, which is to be determined on the basis of the criteria laid down in this Regulation, are intended to produce legal effects vis-à-vis third parties and should therefore be subject to judicial review by national courts, at the latest at the trial stage.

… Where national law provides for judicial review concerning procedural acts which are not intended to produce legal effects vis-à-vis third parties …, this Regulation should not be interpreted as affecting such legal provisions. In addition, Member States should 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 costs.

Finally, this Regulation does not affect the powers of national trial courts.

The legality of procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties should be subject to judicial review before national courts. In that regard, effective remedies should be ensured in accordance with the second subparagraph of Article 19(1) TEU. Furthermore, as underlined by the case-law of the Court of Justice, the national procedural rules governing actions for the protection of individual rights granted by Union law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of rights conferred by Union law (principle of effectiveness).

When national courts review the legality of such acts, they may do so on the basis of Union law, including this Regulation, and also on the basis of national law, which applies to the extent that a matter is not dealt with by this Regulation. …

…

The provision of this Regulation on judicial review does not alter the powers of the Court of Justice to review the EPPO administrative decisions, which are intended to have legal effects vis-à-vis third parties, namely decisions that are not taken in the performance of its functions of investigating, prosecuting or bringing to [judgment]. This Regulation is also without prejudice to the possibility for a Member State of the European Union, the European Parliament, the Council [of the European Union] or the [European] Commission to bring actions for annulment in accordance with the second paragraph of Article 263 TFEU and to the first paragraph of Article 265 TFEU, and to infringement proceedings under Articles 258 and 259 TFEU.’

Article 4 of that regulation, entitled ‘Tasks’, is worded as follows:

‘The EPPO shall be responsible for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices to, criminal offences affecting the financial interests of the Union … In that respect the EPPO shall undertake investigations, and carry out acts of prosecution and exercise the functions of prosecutor in the competent courts of the Member States, until the case has been finally disposed of.’

Article 8 of that regulation, entitled ‘Structure of the EPPO’ provides:

‘1. The EPPO shall be an indivisible Union body operating as one single Office with a decentralised structure.

…’

Article 13 of the regulation, entitled ‘The European Delegated Prosecutors’, states, in paragraph 1:

‘The European Delegated Prosecutors shall act on behalf of the EPPO in their respective Member States and shall have the same powers as national prosecutors in respect of investigations, prosecutions and bringing cases to judgment …

The European Delegated Prosecutors shall be responsible for those investigations and prosecutions that they have initiated, that have been allocated to them or that they have taken over using their right of evocation. …

…’

Article 28 of Regulation 2017/1939, entitled ‘Conducting the investigation’, provides, in paragraph 1:

‘The European Delegated Prosecutor handling a case may, in accordance with this Regulation and with national law, … undertake the investigation measures and other measures on his/her own …’

Article 30 of Regulation 2017/1939, entitled ‘Investigation measures and other measures’, provides, in paragraphs 1, 4 and 5:

‘1. At least in cases where the offence subject to the investigation is punishable by a maximum penalty of at least 4 years of imprisonment, Member States shall ensure that the European Delegated Prosecutors are entitled to order or request the following investigation measures:

search …

obtain the production of any relevant object or document …

obtain the production of stored computer data, …

freeze instrumentalities or proceeds of crime …

intercept electronic communications …

track and trace an object …

…

Article 41 of the regulation, entitled ‘Scope of the rights of the suspects and accused persons’, provides:

‘1. The activities of the EPPO shall be carried out in full compliance with the rights of suspects and accused persons enshrined in the Charter, including the right to a fair trial and the rights of defence.

…

the right to information and access to the case materials, …

the right of access to a lawyer and the right to communicate with and have third persons informed in the event of detention, …

the right to remain silent and the right to be presumed innocent …

…

Article 42 of that regulation, entitled ‘Judicial review’, provides:

‘1. Procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties shall be subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law. The same applies to failures of the EPPO to adopt procedural acts which are intended to produce legal effects vis-à-vis third parties and which it was legally required to adopt under this Regulation.

the validity of procedural acts of the EPPO, in so far as such a question of validity is raised before any court or tribunal of a Member State directly on the basis of Union law;

the interpretation or the validity of provisions of Union law, including this Regulation;

the interpretation of Articles 22 and 25 of this Regulation in relation to any conflict of competence between the EPPO and the competent national authorities.

Spanish law

LO 9/2021

Ley Orgánica 9/2021, de aplicación del Reglamento (UE) 2017/1939 del Consejo, de 12 de octubre de 2017, por el que se establece una cooperación reforzada para la creación de la Fiscalía Europea (Organic Law 9/2021 implementing Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’)), of 1 July 2021 (BOE No 157, of 2 July 2021, p. 78523; ‘LO 9/2021’), establishes, within every competent court, a Juez de garantías (supervisory court), which, according to the recitals of that organic law, is a court that is not involved in the conduct of the proceedings, but which is nevertheless entrusted with the judicial review tasks expressly provided for by that organic law.

Article 42 of LO 9/2021 provides:

‘1. The European Delegated Prosecutors, in accordance with the provisions of [this organic law], Regulation [2017/1939] and the rules laid down in its rules of procedure, shall conduct the investigation ordering the completion of all the steps in the investigation and taking the interim protective measures set out in the Ley de Enjuiciamiento Criminal [(Code of Criminal Procedure)], except those reserved to the courts by the Constitution and other legal provisions, which must be authorised by the supervisory court.

…

Article 43 of LO 9/2021 provides:

‘1. The European Delegated Prosecutor may summon and take witness statements from any person with knowledge of facts and circumstances relevant to the finding of an offence and the determination of the person responsible, or who could provide useful information for that purpose.

With the exception of persons who are exempt from the obligation to appear and provide witness evidence in the oral part of court proceedings, any person who is summoned by the European Delegated Prosecutor is required to appear and to provide evidence, as a witness, as to everything that he or she knows as regards the questions posed to him or her.

The parties to the proceedings, through their lawyers, may attend the witness making a statement, in which case, at the end of the statement, they shall be given the opportunity to ask the witness to make any clarifications they deem necessary.’

Article 90 of LO 9/2021 provides:

‘The decisions made by the European Delegated Prosecutor during the investigation procedure may only be challenged before the supervisory court in the cases expressly provided for in this organic law’.