The EPPO Faces its First Important Test: A Brief Analysis of the Request for a Preliminary Ruling in G. K. and Others

• Date: 06 February 2023
• Year: 2023
• Author: Andrea Venegoni
• Pages: 64
• DOI: https://doi.org/10.30709/eucrim-2022-020

I Facts of the Case and Reference for a Preliminary Ruling

A little more than a year after the start of operation of the European Public Prosecutor’s Office (EPPO), a number of important elements of its operational activities and important legal issues that determine its operation are beginning to emerge.¹ One of the most interesting, but also most critical, issues of EPPO investigations, as was realised even before it started operating, is certainly that of transnational investigations, which are regulated by Art. 31 of Regulation 2017/1939 (the “EPPO Regulation”). Events are bearing this out, and now we have the first request for a preliminary ruling before the Court of Justice of the European Union (CJEU) precisely on the interpretation of this provision. The Court will have to interpret the validity of procedural acts of the EPPO in accordance with Art. 42(2)(a) of the EPPO Regulation – a fundamental provision in the European legislation for the functioning of the EPPO. What is the case about?²

A European Delegated Prosecutor (EDP) in Germany investigated a case on the circumvention of customs provisions and needed to undertake searches in Austria. According to the documents relating to the reference for a preliminary ruling, the search warrant was approved by the competent German judge at the request of the public prosecutor, as required under German law of criminal procedure. Having obtained the judge’s approval for the search warrant in accordance with German law and as provided for in the EPPO Regulation, the German EDP activated the mechanism set out in Art. 31 of said Regulation.

For transnational investigations, the EPPO Regulation introduced a system that goes beyond the traditional mechanisms of judicial cooperation: the EPPO does not use the European Investigation Order to obtain evidence in the territory of another State; instead it is sufficient to involve the EDP of the State where the investigation is to be carried out (the assisting EDP) and to provide him/her with the electronic file for purposes of the execution of the investigations, once the measure has been ordered under the national law of the State in whose territory the EDP conducting the investigation operates (here: Germany). Therefore, in the case at issue, the EDP located in Austria was contacted by the German counterpart. According to Austrian law, a search ordered by the prosecutor must be approved by the competent judge. However, although the search warrant had already been authorised by the competent judge in the State of the EDP conducting the main investigation in Germany, the Austrian EDP also proceeded in accordance with the domestic law of his country and asked the Austrian judge to approve the search warrant, who did so. The persons under investigation appealed against the court approvals of the search warrants, putting forth above all a lack of serious evidence that the offence had been committed; this is a question of substance and not a question strictly related to the execution of the search warrant. The appeals court, the Oberlandesgericht Wien, Austria, had doubts as to which extent Austrian courts can verify the search measure under their national law and initiated a reference for a preliminary ruling to the CJEU (the case is registered as C-281/22).³ The Austrian court in essence argued as follows:

The EPPO is one single office and a measure to be executed in a State other than that of the EDP handling the case must normally be executed in accordance with the law of the State where the assisting EDP operates; if the latter law provides, then, for the measure to be examined by a judge, either for the purposes of prior authorisation or for subsequent approval, the judge of this State must be in a position to examine the entire file.

The referring court called to mind, however, that this would result in an even more complicated system than the one in use today in non-EPPO transnational investigations in which the European Investigation Order (EIO) comes to the fore: under the so-called EIO mechanism, the judge of the State of the execution does not have access to the entire file but examines only the certificate sent by the judicial authority requesting the measure, as the system is based on the principle of mutual recognition.

Must the consequence in transnational EPPO investigations therefore also be drawn that, like under the EIO mechanism, the examination of the judge of the State of the assisting EDP, who has been requested to carry out the measure, is limited to a formal control or that his/her control power does not extend to a complete examination of the previous criminal investigative proceedings? The referring court in Vienna questioned, however, whether this is in line with the EPPO Regulation, in which Art. 31(6) expressly stipulates that systems based on mutual recognition, such as the EIO mechanism, are merely subsidiary in EPPO investigations and would thus seem to be intended to mark a difference between the two systems of transnational assistance. As a result, the Oberlandesgericht Wien primarily posed the following question to the CJEU:⁴

Must EU law, in particular the first subparagraph of Article 31(3) and Article 32 of Council Regulation (EU) 2017/1939 of 12 October 2017 concerning the implementation of enhanced cooperation with a view to the establishment of a European Public Prosecutor’s Office (EPPO), be...