Must EU law, in particular the first subparagraph of Article 31(3) and Article 32 of Regulation 2017/1939, be interpreted as meaning that, in the case of cross-border investigations in the event that a court must approve a measure to be carried out in the Member State of the assisting European Delegated Prosecutor, all material aspects, such as criminal liability, suspicion of a criminal offence, necessity and proportionality, must be examined?

The review in the assisting state may only concern enforcement; justification/adoption are subject to prior review in the handling state.

Should the examination take into account whether the admissibility of the measure has already been examined by a court in the Member State of the European Delegated Prosecutor handling the case on the basis of the law of that Member State?

The prior judicial review in the handling state covers justification/adoption; assisting state's review focuses on enforcement.

In the event that the first question is answered in the negative and/or the second question in the affirmative, to what extent must a judicial review take place in the Member State of the assisting European Delegated Prosecutor?

The judicial review in the assisting state may only address matters related to enforcement of the measure.

Judicial review by assisting state limited to enforcement; justification/adoption reviewed by handling state.

European Court of Justice · Judgment · Preliminary ruling

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – European Public Prosecutor’s Office – Regulation (EU) 2017/1939 – Article 31 – Cross-border investigations – Judicial authorisation – Scope of the review – Article 32 – Enforcement of assigned measures)

Rechtsvraag

Must Articles 31 and 32 of Regulation (EU) 2017/1939 be interpreted as allowing judicial review in the Member State of the assisting European Delegated Prosecutor to include both justification and adoption of an investigation measure, or should it be limited to enforcement aspects?

Regel

art. 31(1), Regulation 2017/1939 (European Delegated Prosecutors must cooperate closely in cross-border cases)
art. 31(2), Regulation 2017/1939 (The justification and adoption of measures are governed by the law of the handling European Delegated Prosecutor's Member State)
art. 31(3), Regulation 2017/1939 (Judicial authorization is required according to the law of the assisting European Delegated Prosecutor's Member State)
art. 31(4), Regulation 2017/1939 (Assisting European Delegated Prosecutor must undertake or instruct the enforcement of assigned measures)
art. 32, Regulation 2017/1939 (Assigned measures are carried out according to the regulation and the law of the assisting European Delegated Prosecutor's Member State)
art. 31(6), Regulation 2017/1939 (Legal instruments on mutual recognition may be used for cross-border cooperation)
art. 41(1), Regulation 2017/1939 (EPPO's activities must respect rights enshrined in the Charter)

Conclusie

Articles 31 and 32 of Regulation 2017/1939 must be interpreted as allowing the judicial review in the Member State of the assisting European Delegated Prosecutor to focus solely on the enforcement of the measure. The justification and adoption must be reviewed in the Member State of the handling European Delegated Prosecutor, ensuring responsibilities are distinct and efficient, while respecting fundamental rights.

Tijdlijn

12-10-2017 Council Regulation (EU) 2017/1939 was adopted, implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (EPPO).
09-11-2021 The Austrian assisting European Delegated Prosecutor, in the context of assistance to an investigation, ordered searches and seizures at the business premises of B.O.D. and at the homes of G.K. and S.L., all in Austria.
09-11-2021 The Austrian assisting European Delegated Prosecutor requested the competent Austrian courts to authorize the searches and seizures.
09-11-2021 After obtaining the necessary authorizations, the Austrian assisting European Delegated Prosecutor ordered the competent financial authority to enforce the searches and seizures.
01-12-2021 G.K., B.O.D. and S.L. brought actions before the Oberlandesgericht Wien against the decisions of the Austrian courts authorizing the investigation measures.
08-04-2022 The Oberlandesgericht Wien decided to refer questions to the Court of Justice of the European Union for a preliminary ruling regarding the interpretation of Articles 31 and 32 of Regulation 2017/1939.
25-04-2022 The request for a preliminary ruling from the Oberlandesgericht Wien was received by the Court of Justice of the European Union.
27-02-2023 A hearing was conducted by the Court of Justice of the European Union on the referred questions.
22-06-2023 The Advocate General presented their opinion at a sitting of the Court.
21-12-2023 The Court of Justice of the European Union delivered its judgment regarding the interpretation of Articles 31 and 32 of Regulation 2017/1939.