{"id":3327,"date":"2025-04-18T23:38:09","date_gmt":"2025-04-18T21:38:09","guid":{"rendered":"https:\/\/johan-callewaert.eu\/?p=3327"},"modified":"2025-04-20T23:09:46","modified_gmt":"2025-04-20T21:09:46","slug":"an-elephant-in-the-room-the-european-convention-on-human-rights-and-the-eppo-judgment-of-the-cjeu-in-the-eppo-case","status":"publish","type":"post","link":"https:\/\/johan-callewaert.eu\/de\/an-elephant-in-the-room-the-european-convention-on-human-rights-and-the-eppo-judgment-of-the-cjeu-in-the-eppo-case\/","title":{"rendered":"An elephant in the room: the European Convention on Human Rights and the EPPO \u2013 Judgment of the CJEU in the EPPO case"},"content":{"rendered":"\n

At the heart of the case of EPPO (judicial review of procedural acts)<\/em><\/a> (C-292\/23, 8.4.2025) was the interpretation by the CJEU of Article 42(1) of Regulation 2017\/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor\u2019s Office<\/strong> (\u201cthe EPPO\u201d), which regulates the judicial review<\/strong> available under that Regulation.<\/p>\n\n\n\n

In the case at hand, two directors of a Spanish company were suspected of subsidy fraud with EU funds. Their lawyers appealed against the decision by the European Delegated Prosecutors<\/strong> handling the case to summon another person<\/strong>, Y.C., as a witness<\/strong>. The referring court, before which the appeal was lodged, asked the CJEU about whether it had jurisdiction under EU law to deal with this appeal. <\/p>\n\n\n\n

The CJEU first notes that under Article 42(1) of the Regulation, \u201cprocedural acts of the EPPO that are intended to produce legal effects vis-\u00e0-vis third parties<\/strong>\u201d are subject to review by the competent national courts<\/strong> in accordance with the requirements and procedures laid down by national law. After applying an autonomous and extensive interpretation<\/strong> of the concepts of \u201cprocedural acts<\/strong>\u201d and \u201cthird parties<\/strong>\u201d, the CJEU states that the question whether such acts produce binding legal effects<\/strong> should be assessed in concreto<\/strong><\/em>, i.e. on a case-by-case basis, having regard to the circumstances of each case.<\/p>\n\n\n\n

The existence of such binding legal effects<\/strong> will, in the CJEU\u2019s opinion, vary <\/strong>according to the procedural rights<\/strong> to which a suspect or accused person is entitled in a given case. This is because, first, the purpose of the judicial review is precisely to ensure that the EPPO observes the fundamental rights<\/strong> of the persons in respect of whom these procedural acts produce such effects, notably the right to procedural fairness <\/strong>and the rights of the defence<\/strong>, in accordance with Articles 47 and 48 of the EU-Charter<\/strong>; and because, secondly, pursuant to Article 41 of the Regulation, these procedural rights cover not only those laid down by EU law<\/strong>, but also those granted by national law<\/strong>, which vary depending on the Member State concerned (\u00a7\u00a7 70-72).<\/p>\n\n\n\n

Thus, the scope of the procedural acts by the EPPO<\/strong> producing legal effects on (the rights of) third parties can vary <\/strong>accordingly. This is why the CJEU considers national courts<\/strong> to be best placed<\/strong> to assess the effects of a decision to summon a witnes<\/strong>s on the rights of a person who is the subject of an investigation, the criterion being whether that decision brings about a distinct change in the legal position<\/strong> of the person concerned, notably by affecting his or her procedural rights<\/strong> (\u00a7\u00a7 73, 75). <\/p>\n\n\n\n

If that is the case, the question arises as to whether the judicial review to which that person is entitled under Article 42(1) of the Regulation must necessarily be carried out by way of a direct appeal<\/strong> or whether it can also take the form of an incidental question<\/strong> dealt with by the criminal trial court. According to the CJEU, an incidental question<\/strong> is an acceptable option, provided that it is an effective remedy<\/strong> allowing all relevant questions of law and fact<\/strong>, in particular any breaches of rights and freedoms guaranteed by EU law<\/strong>, to be properly addressed (\u00a7\u00a7 79-80). <\/p>\n\n\n\n

However, pursuant to the principle of equivalence<\/strong>, it would not be acceptable for a direct appeal<\/strong> against acts of the European Delegated Prosecutors<\/strong> to be excluded in a national legal order if the latter provides for the possibility of a direct appeal<\/strong> against analogous acts of a national investigating judge<\/strong> (\u00a7 88).<\/p>\n\n\n\n

Observations<\/em><\/p>\n\n\n\n

First of all, this ruling is a useful confirmation of \u2013 and elaboration on \u2013 the competence of national courts<\/strong> to carry out a judicial review of acts of the Delegated European Prosecutors<\/strong>. It is also a reminder of the role played by national procedural rights<\/strong>, along with EU procedural rights<\/strong>, in the context of such a judicial review (\u00a7 71).<\/p>\n\n\n\n

At the same time, the European Convention on Human Rights<\/strong> is obviously the elephant in the room<\/strong> in this judgment. Unlike EU and national law, it is nowhere being referred to. Yet it seems clear that next to these two last-named sources, the Convention also applies to any judicial review <\/strong>carried out by national courts under Article 42(1) of the Regulation<\/strong> (see No case to answer for the European Public Prosecutor?<\/a><\/em>). There are two reasons for this. First, the Convention is an integral part of the domestic legal system<\/strong> of virtually all Member States of the EU, where it has a major impact on precisely the procedural rights in criminal proceedings<\/strong>. For the sake of clarity, this fact alone should have prompted the CJEU, when identifying the national legal systems as a source of procedural fundamental rights in this context, to at least also flag the role of the Convention<\/strong> in these national legal systems, which the national judges themselves cannot ignore.<\/p>\n\n\n\n

Secondly, the Convention applies, in general, to any application of EU law by the domestic courts<\/strong> of the Member States (see, among others, Bosphorus v. Ireland<\/a><\/em>, \u00a7 137) and Article 6 of the Convention<\/strong> (right to a fair trial<\/strong>), in particular, is more than likely to apply in its criminal limb to judicial review proceedings<\/strong> conducted before national courts against acts of the EPPO<\/strong> (see, mutatis mutandis<\/em>, Vera Fern\u00e1ndez-Huidobro v. Spain<\/a><\/em>, \u00a7\u00a7 108-114), subject to confirmation by the ECtHR when a first case concerning a judicial review under Article 42(1) of the Regulation is brought before it.<\/p>\n\n\n\n

Against this background, it seems rather misleading <\/strong>to present, as in paragraphs 79, 80 and 84 of the judgment, the effectiveness of a judicial remedy<\/strong> under Article 42(1) of the Regulation to be sufficiently ensured when the sole procedural rights laid down by EU law<\/strong> are respected. Such a system-focussed <\/strong>– and therefore partial – presentation<\/strong> is at odds with the reality on the ground which is that the national courts<\/strong> entrusted with this kind of judicial review<\/strong> must also apply the procedural rights <\/strong>enshrined in their own national law and\/or in the Convention<\/strong>.<\/p>\n\n\n\n

This is particularly so in view of the fact that there is, to date, far more Strasbourg case-law <\/strong>on procedural rights in criminal proceedings than there is Luxembourg case-law<\/strong> on that topic, which might sometimes make the former more relevant in practice. Admittedly, the Directives on procedural rights in criminal proceedings<\/strong> seek to reflect a significant part of the Strasbourg case-law on the right to a fair trial in criminal proceedings. However, they contain lacunae <\/strong>(e.g. in Spetsializirana prokuratura<\/a><\/em>) and their interpretation sometimes gives rise to protection drops<\/strong> (e.g. in VB II<\/a><\/em>).<\/p>\n\n\n\n

Thus, contrary to the presentation by the CJEU, a wholistic look <\/strong>at the reality on the ground tells us that EU law alone <\/strong>cannot be decisive for the effectiveness of a remedy <\/strong>before domestic criminal courts carrying out judicial review<\/strong> under Article 42(1) of the Regulation. Genuine effectiveness <\/strong>in this field can only be the result of national courts complying also with their own national<\/strong> as well as the Convention procedural rights<\/strong>, along with the relevant EU procedural rights<\/strong>, as indeed suggested by Article 41(3) of the Regulation itself.<\/p>\n","protected":false},"excerpt":{"rendered":"

At the heart of the case of EPPO (judicial review of procedural acts) (C-292\/23, 8.4.2025) was the interpretation by the CJEU of Article 42(1) of Regulation 2017\/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor\u2019s Office (\u201cthe EPPO\u201d), which regulates the judicial review available under that Regulation. In the case at hand, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,19],"tags":[],"class_list":["post-3327","post","type-post","status-publish","format-standard","hentry","category-court-of-justice-of-the-eu","category-recent-case-law"],"translation":{"provider":"WPGlobus","version":"3.0.2","language":"de","enabled_languages":["en","de","fr"],"languages":{"en":{"title":true,"content":true,"excerpt":false},"de":{"title":false,"content":false,"excerpt":false},"fr":{"title":false,"content":false,"excerpt":false}}},"_links":{"self":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/3327","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/comments?post=3327"}],"version-history":[{"count":7,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/3327\/revisions"}],"predecessor-version":[{"id":3337,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/posts\/3327\/revisions\/3337"}],"wp:attachment":[{"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/media?parent=3327"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/categories?post=3327"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/johan-callewaert.eu\/de\/wp-json\/wp\/v2\/tags?post=3327"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}