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)

• Date: 25 July 2023
• Author: Dr. Hans-Holger Herrnfeld
• DOI: https://doi.org/10.30709/eucrim-2023-010
• Pages: 123

I. Introduction

It came as no surprise that the provisions of Art. 31 of Regulation (EU) 2017/1939 (hereinafter: EPPO Reg.)¹ on cross-border investigations within the EPPO’s territory would become subject to one of the first references for a preliminary ruling to the Court of Justice of the European Union (hereinafter “ECJ” or “Court”). The negotiations on this provision had been particularly controversial in the Council, and the resulting text of Art. 31 is not very convincing.² The main question heavily debated at the time was whether a required judicial authorisation of an investigation measure in a cross-border setting should be obtained from a court/judge in the Member State in which the investigation is being conducted or in the Member State in which the requested investigation measure is to be undertaken. While the EPPO has been conceived as a “single office” (Art. 8(1) EPPO Reg.), it nevertheless operates on the basis of national criminal procedural law (cf. Art. 5(3) EPPO Reg.) and thus not in a “single legal area”.³ The rules on cross-border investigation measures by the EPPO thus need to clarify which national legal regime is to apply and in which Member State judicial authorisation is to be obtained.

In January 2022, the College of the EPPO considered it appropriate to issue internal guidelines⁴ on the interpretation of Art. 31 and the procedures to be kept when the European Delegated Prosecutors (hereinafter: EDPs) request the judicial authorisation of an investigation measure, essentially requiring the EDPs to obtain a required judicial authorisation in the Member State in which the so-called “handling EDP” conducts the investigations. While the interpretation given by the College may be debatable as such a rule is at least not specifically set out in Art. 31, the guidelines offer a pragmatic interpretation of the EPPO Regulation until the Council perhaps decides to amend and/or clarify the text of Art. 31.

Before the College adopted the guidelines, however, the question of interpretation of Art. 31 had already become an issue in proceedings before the Higher Regional Court of Vienna, Austria (Oberlandesgericht Wien). The Vienna court considered it necessary to request a preliminary ruling from the European Court of Justice (reference: Case C-281/22). A hearing in that case was held on 27 February 2023 and Advocate General (AG) Tamara Ćapeta presented her Opinion on 22 June 2023.⁵

This article provides a summary of the Advocate General’s Opinion, analyses its findings, and offers possible conclusions prior to rendering of the ECJ judgment, which is expected to follow by the end of 2023.

II. Facts and Relevant Legal Framework

A German European Delegated Prosecutor (“handling EDP”) investigated an alleged criminal offence, which required search and seizure measures inter alia in Austria. In accordance with Art. 31(3) subparagraph 1 EPPO Reg. as well as the German law implementing the EPPO Reg.,⁶ the German EDP did not obtain judicial authorisation in Germany for the searches/seizures to be conducted in Austria (which would have been required in a domestic case in Germany). The reason was that, in accordance with Austrian law, a prior judicial authorisation for such measure is necessary and thus – in accordance with Section 3(2) of the German implementing law – no judicial authorisation in Germany was required. The German EDP assigned the measure to his Austrian colleague (“assisting EDP”) who obtained search and seizure warrants from Austrian courts. Subsequently, the defendants filed an appeal against the search warrants before the Higher Regional Court of Vienna. In their view, the measures were neither necessary nor proportionate. In the course of the proceedings, the Austrian EDP claimed that, in accordance with the EPPO Regulation, the justification of the measure may be examined only in the Member State of the handling EDP. In his opinion, the court in the assisting EDP’s Member State cannot assess the substantive validity of the measures but may control only whether the measure complies with formal and procedural requirements. The Higher Regional Court of Vienna therefore presented three questions to the ECJ. While these questions focus on the scope of review to be undertaken by the court in the Member State of the assisting EDP, they are closely related to the underlying question of whether the substantive ex ante review to be undertaken in the course of a required judicial authorisation is a competence belonging to the court/judge in the Member State of the handling EDP (where the investigation proceedings are being conducted) or of the court/judge in the Member State of the assisting EDP (where the required measure is to be enforced).

The relevant legal framework is set out in Art. 31 EPPO Reg on “Cross-border investigations”. Its paragraph 1 provides that the handling EDP “shall decide on the adoption of the necessary measure and assign it to a European Delegated Prosecutor located in the Member State where the measure needs to be carried out.” Art. 31(2) concerns the “justification and adoption” of the measure by the handling EDP, and it applies irrespective of whether the adoption, in accordance with national law, requires a judicial authorisation or not. The second sentence reads as follows: “The justification and adoption of such measures shall be governed by the law of the Member States of the handling European Delegated Prosecutor.” This is followed by paragraph 3 of Art. 31 on “judicial authorisation”, which differentiates between situations in which judicial authorisation is required under the law of the assisting EDP’s Member States (subparagraphs 1 and 2) and situations in which judicial authorisation is only required under the law of the handling EDP’s Member State (subparagraph 3). Art. 31 is followed by Art. 32 EPPO Reg. entitled “Enforcement of assigned measures”.

III Summary of the Opinion by Advocate General Ćapeta and Her Conclusions

In her Opinion, AG Ćapeta refers in detail to two very different understandings of Art. 31 EPPO Reg. The first one was put forward by the Austrian and German governments (referred to by the Advocate General as “Option One”), and the second one was submitted by the Commission and largely supported by the EPPO as well as the governments of Netherlands and Romania (referred to as “Option Two”). According to the views in favour of “Option One”, it follows from the text of Art. 31(3) that, where a judicial authorisation is required under the law of the assisting EDP’s Member State, this is to be obtained in that Member State. The judge/court of that Member State should undertake a full substantial review of the legality and proportionality of the requested measure. The Austrian and German governments consider that the wording of Art. 31 is quite clear in this respect and “the courts cannot depart from it” (mn. 35 f.).⁷ By contrast, the Commission and other proponents of “Option Two” argued: “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 and procedural aspects relating to the execution of the measure (…). If the laws of the Member States of both the handling and the assisting EDPs require judicial authorisation, two authorisations are to be issued. The court of the handling EDP’s Member State would authorise the measure if it finds it justified, whereas the court of the assisting EDP’s Member State would authorise the procedural modalities of its execution.” (mn. 38 f.).

In the introductory part of her Opinion, AG Ćapeta concludes that “none of the proposed outcomes are fully justified” under applicable interpretive techniques; “nevertheless, the Court will have to choose one.” (mn. 4).

Before entering into an interpretation of the relevant provisions of Arts. 31 and 32, AG Ćapeta initially refers to the Austrian/German alternative proposal for what is now Art. 31(3) (mn. 27), which had been presented in the Council Working Group (COPEN) in April 2015 and reads as follows:

Where a measure needs to be undertaken in a Member State other than the Member State of the handling European Delegated Prosecutor, the latter shall order the measure in accordance with the law of the Member State of the handling European Delegated Prosecutor and, where necessary, shall apply for a judicial authorisation thereof, or shall request a court order for the measure.

The Advocate General then rightly points out, that this proposal had failed to make its way into the final text of the EPPO Regulation (mn. 28). In her view, the final text of Art. 31(3) “does not clearly specify which Member State law determines whether prior judicial authorisation for executing a measure is necessary, nor which court is responsible for granting such authorisation.” (mn. 29).

Nevertheless, she essentially follows the views of the Commission (mn. 73) that the solution proposed by Austria and Germany during the negotiations, according to which the handling EDP must obtain the necessary judicial authorisation in his/her own Member State, is exactly what Art. 31 now regulates in its paragraph 2, albeit in an imperfect way.

Her further analysis then leads AG Ćapeta to conclude the following:

Article 31(3) of the EPPO Regulation should be understood as allowing the court of the Member State of the assisting EDP to review only the aspects related to the execution of an investigative measure, while accepting the assessment by the handling EDP that the measure is justified, whether or not the latter is backed by prior judicial authorisation of the court of the Member State of the handling EDP. (mn. 73).

Furthermore, she points out that “the EPPO Regulation is indeed the most advanced piece of legislation yet …. The EPPO is a single body and the assigned cross-border measures indeed need not be recognised, but only implemented.” (mn. 101).

IV....