Vice-President L Bay Larsen (Rapporteur),
Presidents of Chambers A Arabadjiev, A Prechal, K Jürimäe, T von Danwitz, F Biltgen, O Spineanu‑Matei,
Judges M Ilešič, JC Bonichot, M Safjan, S Rodin, D Gratsias, ML Arastey Sahún, M Gavalec
Advocate General T Ćapeta
The European Public Prosecutor’s Office (“EPPO”) opened an investigation in Germany into large-scale tax fraud by a company and its managing directors, all located in Austria, who were suspected of making false customs declarations and thus of causing significant damage to the financial interests of the European Union. The EPPO conducted the investigation through a European Delegated Prosecutor in Germany (“the handling EDP”) who delegated the enforcement of investigation measures to an assisting EDP in Austria (“the assisting EDP”), pursuant to article 31(1) of Council Regulation (EU) 2017/1939. The assisting EDP ordered searches and seizures at the business premises of the company, and its parent, and homes of the directors, and requested the Austrian courts to authorise those measures in accordance with article 31(1) and (2) and article 32 of the Regulation, under which the handling EDP had to decide whether to adopt an assigned investigation measure and that that adoption, as well as the justification of that measure, were governed by the law of that EDP’s member state, whereas the enforcement of such a measure was governed by the law of the member state of the assisting EDP. Having obtained those authorisations, the assisting EDP ordered the competent financial authority to enforce the search and seizure measures, which that authority did. The company and directors then brought an action before the Higher Regional Court, Vienna, claiming that the measures authorised by the Austrian courts were not justified. In those circumstances, the Higher Regional Court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question, in essence, whether, articles 31 and 32 of Regulation 2017/1939 meant that the review conducted in the member state of the assisting EDP, where an assigned investigation measure required judicial authorisation in accordance with the law of that member state, could relate both to matters concerning the justification and adoption of that measure and to matters concerning its enforcement.
On the reference—
Held, the distinction drawn by articles 31 and 32 of Regulation 2017/1939 between the justification and adoption, on the one hand, and the enforcement of an assigned investigation measure, on the other, reflected the logic underlying the system of judicial co-operation in criminal matters between the member states, which was based on the principles of mutual trust and recognition. It followed that the executing authority was not supposed to review compliance by the issuing authority with the conditions for issuing the judicial decision which it had to execute. Further, an interpretation of articles 31 and 32 whereby the justification for an investigation measure could be examined in the member state of the assisting EDP would lead to a less efficient system and would undermine the objectives of the Regulation, namely to establish an efficient mechanism for EPPO’s cross-border investigations. In accordance with that distinction between responsibilities for the purposes of co-operation between EDPs, any review of the judicial authorisation required under the law of the member state of the assisting EDP only related to elements connected with enforcement of the measure. Matters relating to the justification and adoption of the assigned measure had to be subject to prior judicial review in the member state of the handling EDP in the event of serious interference with the rights of the person concerned guaranteed by the Charter of Fundamental Rights of the European Union. Where the measures concerned were investigation measures such as searches of private homes, conservatory measures relating to personal property or asset freezing, it was then for the member state of the handling EDP to provide, in national law, for adequate and sufficient safeguards, such as a prior judicial review, in order to ensure the legality and necessity of such measures. Accordingly, articles 31 and 32 of Council Regulation (EU) meant that the review conducted in the member state of the assisting EDP, where an assigned investigation measure required judicial authorisation in accordance with the law of that member state, could relate only to matters concerning the enforcement of that measure, whereas matters concerning the justification and adoption of that measure had to be subject to prior judicial review in the member state of the handling EDP in the event of serious interference with the rights of the accused person concerned (judgment, paras 53, 54, 55, 64, 67, 68, 71, 72, 73, 75, 78, operative part).
W Gappmayer for the accused company and directors.
L De Matteis, T Gut, I Maschl‑Clausen and FR Radu, agents, for the Austrian delegate, European Public Prosecutor’s Office.
J Schmoll, J Herrnfeld and C Leeb, agents, for the Austrian Government.
J Möller, P Busche and M Hellmann, agents, for the German Government.
R Bénard and A Daniel, agents, for the French Government.
K Bulterman, A Hanje and JM Hoogveld, agents, for the Netherlands Government.
M Chicu, E Gane and A Wellman, agents, for the Romanian Government.
J Baquero Cruz and S Grünheid, agents, for the European Commission.