Provisional text

6 June 2025 (*)

( Enhanced cooperation on the establishment of the European Public Prosecutor’s Office – Letters from the European Delegated Prosecutor – Article 42(1) to (3) of Regulation (EU) 2017/1939 – Lack of jurisdiction )

In Case T‑509/24,

Areál Zákolany s. r. o.,

Simon Cihelník,

represented by J. Mašek, lawyer,

applicants,

European Public Prosecutor’s Office (EPPO),

defendant,

THE GENERAL COURT (Sixth Chamber),

composed of M.J. Costeira, President, M. Kancheva and P. Zilgalvis (Rapporteur), Judges,

Registrar: V. Di Bucci,

having regard to the order of 17 March 2025, Research Investments and Others v EPPO (T‑509/24 R, not published, EU:T:2025:310),

having regard to the written part of the procedure, in particular:

–the application lodged at the General Court Registry on 1 October 2024;

–the plea of inadmissibility and of lack of jurisdiction raised by the EPPO by separate document lodged at the Court Registry on 11 December 2024;

–the applicants’ observations regarding the plea of inadmissibility and of lack of jurisdiction lodged at the Court Registry on 7 January 2025,

makes the following

By their action under Article 263 TFEU, the applicants, Research Investments s. r. o., Areál Zákolany s. r. o. and Mr Simon Cihelník, request the annulment of three letters of the Czech European Delegated Prosecutor dated 1 and 15 August 2024, by which the Czech European Delegated Prosecutor responded to the letters entitled ‘Invitation to act pursuant to Article 265 (and Article 263) TFEU’ which the applicants had sent to the EPPO (together, ‘the contested letters’).

Background to the dispute

Following an investigation conducted by the EPPO into alleged offences of subsidy fraud, harm to the financial interests of the European Union and money laundering, the applicants were charged, by decision of the Czech European Delegated Prosecutor of 24 June 2022, and referred to the court with territorial jurisdiction, namely the Krajský soud v Praze (Regional Court, Prague, Czech Republic) on 28 June 2022. That case bears the reference 3 T 30/2022.

On 5 December 2022, the hearing phase began and has been ongoing since that date.

On 1 and 14 August 2024, the applicants sent the EPPO three letters entitled ‘Invitation to act pursuant to Article 265 (and Article 263) TFEU’. By those letters, the applicants stated that the EPPO was not competent to prosecute the case referred to in paragraph 2 above and that all its procedural documents were void. Furthermore, they requested that the EPPO act in accordance with Article 22(1) and (3), Article 25(3)(a) and Article 39 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), by adopting a decision to dismiss the case or to suspend the proceedings, in the absence of which they would be obliged to bring an action before the General Court pursuant to Article 265 TFEU or to rely on the procedure provided for in Article 263 TFEU.

By the contested letters, the Czech European Delegated Prosecutor informed the applicants that he regarded their letters, referred to in paragraph 4 above, as part of their defence in the criminal proceedings pending before the Krajský soud v Praze (Prague City Court) and that for that reason they would be sent to that court. Similarly, the Czech European Delegated Prosecutor noted that the national courts had already examined the applicants’ objections as regards the competence of the EPPO in the present case. In addition, the prosecutor stated that, because of the rules applicable to the judicial review of procedural measures taken by the EPPO, Articles 265 and 263 TFEU were not applicable in the present case.

Furthermore, in the letters sent to Research Investments and Areál Zákolany, dated 15 August 2024 and notified on 19 August 2024, the Czech European Delegated Prosecutor drew their attention to the link between Regulation 2017/1939 and Article 3 of Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ 2017 L 198, p. 29), which defines fraud affecting the European Union’s financial interests, and to the notification made by the Czech Republic pursuant to Article 117 of Regulation 2017/1939, in connection with the issue of the ‘direct’ competence of the EPPO to examine the offences referred to in that notification.

Forms of order sought

The applicants claim that the Court should:

–annul the contested letters;

–find that the EPPO infringed EU law in that, during the investigation stage and the prosecution stage before the national court, it, unlawfully, did not refrain from exercising its competence during the proceedings brought against them, as provided for in Article 25(3)(a) of Regulation 2017/1939, and that, therefore, all the procedural acts undertaken by the EPPO in the present case are invalid;

–find that the EPPO infringed EU law in so far as, during the proceedings brought against them before the national court, it unlawfully failed to dismiss the case or suspend the proceedings in accordance with Article 39 of Regulation 2017/1939 and that the decision of the EPPO to pursue the proceedings before the national court is therefore invalid;

–order the EPPO to pay the costs.

By its plea of inadmissibility and of lack of jurisdiction, the EPPO contends that the Court should:

–dismiss the action as inadmissible or for lack of jurisdiction;

–order the applicants to pay the costs.

In response to the plea of inadmissibility and of lack of jurisdiction, the applicants claim that the Court should reject that plea.

Law

Under Article 130(1) and (7) of the Rules of Procedure, if the defendant makes an application to that effect, the Court may decide on the inadmissibility of the action or its own jurisdiction without going to the substance of the case. In the present case, since the EPPO has applied for a decision on the inadmissibility of the action and on the Court’s jurisdiction, the Court, considering that it has sufficient information from the documents before it, has decided to rule on that application without taking further steps in the proceedings.

In its plea of inadmissibility and of lack of jurisdiction, the EPPO raises two pleas of inadmissibility, alleging, first, that the action is not directed against an act producing legal effects vis-à-vis third parties and, second, that the Court lacks jurisdiction. It is appropriate to begin the examination with the latter plea.

By its second objection of inadmissibility, the EPPO submits, in essence, that the Court does not have jurisdiction to review the legality of the contested letters, in accordance with Article 42(1) of Regulation 2017/1939, which confers that jurisdiction on national courts. Similarly, the EPPO submits that the applicants’ second and third heads of claim must be rejected on the ground that the Court has no jurisdiction to hear them, since there is no remedy whereby the Courts of the European Union can adopt a position by means of a general declaration or statement of principle.

The applicants dispute the second objection of inadmissibility. As a preliminary point, they ask the Court to determine whether the plea of inadmissibility and of lack of jurisdiction was submitted within the time limit laid down in Article 81(1) of the Rules of Procedure. As regards the first head of claim, they submit that the Court of Justice of the European Union has sole jurisdiction to annul acts of the EU institutions, in accordance with point (b) of the first paragraph of Article 267 TFEU and Article 127 of the Rules of Procedure. Moreover, the contested letters are ‘sui generis ’ decisions to dismiss a case. The review of the legality of the contested letters is thus a matter for the Court, in accordance with a ‘broad’ interpretation of Article 42(3) of Regulation 2017/1939. Furthermore, the Court has jurisdiction to hear the second and third heads of claim, given that, if the case is examined, the Court is obliged to interpret Regulation 2017/1939 broadly, whether from a procedural point of view as to the admissibility of the action or for the purposes of any decision on the substance of the case.

As a preliminary point, it should be noted that the plea of inadmissibility and of lack of jurisdiction was raised by the EPPO in compliance with the time limit for lodging such a plea. It is apparent from the documents before the Court that the application was served on the EPPO on 10 October 2024 and that the latter raised the plea of inadmissibility and of lack of jurisdiction by a separate document lodged at the General Court Registry on 11 December 2024. The plea of inadmissibility and of lack of jurisdiction was therefore lodged at the Court Registry within the period of two months prescribed by Article 81(1) of the Rules of Procedure, extended on account of distance by virtue of Article 60 of those rules.

Under Article 86(3) TFEU, the regulation establishing the EPPO lays down, inter alia, the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.

In that regard, it should be observed that the mechanism provided for by the legislature to ensure the review of procedural acts of the EPPO is a sui generis mechanism. According to recital 88 of Regulation 2017/1939, that mechanism is intended to ensure effective remedies, in accordance with the second subparagraph of Article 19(1) TEU (see order of 15 December 2023, Stan v EPPO, T‑103/23, EU:T:2023:871, paragraph 25 and the case-law cited).

Provision is made for the judicial review of procedural acts of the EPPO in Article 42 of Regulation 2017/1939. More specifically, Article 42(1) of that regulation provides, inter alia, that procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties are subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law. Article 42(2) of that regulation states that the Court of Justice of the European Union has jurisdiction, in accordance with Article 267 TFEU, to give preliminary rulings concerning 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 EU law, concerning the interpretation or validity of provisions of EU law, including Regulation 2017/1939, and concerning the interpretation of Articles 22 and 25 of that regulation in relation to any conflict of competence between the EPPO and the competent national authorities (order of 15 December 2023, Stan v EPPO, T‑103/23, EU:T:2023:871, paragraph 26).

Article 42(3) and (8) of Regulation 2017/1939 expressly provides for the jurisdiction of the EU judicature, under Article 263 TFEU, only in respect of (i) decisions of the EPPO to dismiss a case, in so far as they are contested directly on the basis of EU law, (ii) decisions of the EPPO which affect the data subjects’ rights under Chapter VIII of Regulation 2017/1939, (iii) decisions of the EPPO which are not procedural acts, such as decisions concerning the right of public access to documents, (iv) decisions dismissing European Delegated Prosecutors adopted pursuant to Article 17(3) of that regulation, or (v) any other administrative decisions (order of 15 December 2023, Stan v EPPO, T‑103/23, EU:T:2023:871, paragraph 27).

As regards Article 42(1) and (2) of Regulation 2017/1939, it has been held that the wording of those provisions is in no way ambiguous inasmuch as they confer on national courts exclusive jurisdiction to hear and determine procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties, apart from the exceptions laid down in Article 42(3) of that regulation and from the fate of certain decisions of the EPPO referred to in Article 42(8) of that regulation, and that it is only by way of preliminary ruling that the Court of Justice of the European Union is called upon to rule on (i) the validity of those acts in the light of provisions of EU law and (ii) the interpretation or validity of provisions of Regulation 2017/1939 (order of 15 December 2023, Stan v EPPO, T‑103/23, EU:T:2023:871, paragraph 31).

In the present case, it should be emphasised that, as is apparent from paragraph 5 above, in the contested letters, the European Delegated Prosecutor stated that he considered the letters sent to him entitled ‘Invitations to act’ to be part of the applicants’ defence in the criminal proceedings pending before the Krajský soud v Praze (Regional Court, Prague) and that for that reason he was going to send them to that court.

It follows that the contested letters cannot be regarded, even implicitly, as decisions to dismiss the case, within the meaning of Article 39 of Regulation 2017/1939, and that, consequently, the Court does not have jurisdiction to review their legality under Article 42(3) of that regulation.

The applicants’ arguments relating to a broad interpretation of Article 42(3) of Regulation 2017/1939, from which it is apparent that they consider the contested letters to be ‘sui generis ’ decisions to dismiss a case’, does not affect that conclusion.

In that regard, it should be borne in mind that, according to settled case-law, recourse to a broad interpretation is possible only in so far as it is compatible with the wording of the provision at issue and that even the principle of interpretation in conformity with a rule of superior binding force cannot serve as the basis for an interpretation that is contra legem (see order of 15 December 2023, Stan v EPPO, T‑103/23, EU:T:2023:871, paragraph 30 and the case-law cited).

Even if the contested letters were equivalent to sui generis decisions to dismiss a case, which has not been demonstrated in the present case, the ‘broad’ interpretation of Article 42(3) of Regulation 2017/1939 advocated by the applicants would result in measures not covered by Article 39 of Regulation 2017/1939 being classified as a ‘sui generis ’ decision to dismiss a case’, which would undermine the system of judicial review provided for in Article 42 and noted in paragraphs 17 to 19 above.

It follows from the foregoing that the first head of claim must be rejected on the ground of lack of jurisdiction.

Furthermore, it should be noted that, by their second and third heads of claim, the applicants seek, in essence, a finding from the Court that the EPPO infringed certain provisions of EU law. In that regard, it is sufficient to state that in proceedings before the Courts of the European Union, there is no remedy whereby the Courts can adopt a position by means of a general declaration or statement of principle and that the General Court has no jurisdiction in the context of a review of legality on the basis of Article 263 TFEU to issue declaratory judgments (see order of 19 November 2020, Buxadé Villalba and Others v Parliament, T‑32/20, not published, EU:T:2020:552, paragraph 64 and the case-law cited).

Therefore, the second and third heads of claim must be rejected on the ground of lack of jurisdiction.

In the light of all the foregoing considerations, the second objection of inadmissibility raised by the EPPO must be upheld and, without it being necessary to examine the first objection of inadmissibility, the present action must be dismissed on the ground of lack of jurisdiction.

Costs

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, including those relating to the interim proceedings, in accordance with the form of order sought by the EPPO.

On those grounds,

hereby orders:

1.The action is dismissed for lack of jurisdiction.

Luxembourg, 6 June 2025.

Registrar

President

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Language of the case: Czech.