In the case of G.K. and Others (European Public Prosecutor’s Office) (C-281/22, 21.12.2023), the CJEU interpreted Regulation 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (EPPO) and ruled on the scope of the judicial review to be carried out by the courts of the Member States in the event of cross-border investigation measures.

In the case before the referring court, several persons were being prosecuted for fraud concerning the import of biodiesel into the Union. The EPPO conducted an investigation in Germany through a “handling European Delegated Prosecutor” (EDP) and, for the purposes of the investigation, the search and seizure of goods in Austria was ordered. The German handling EDP thus delegated the enforcement of those measures to an Austrian “assisting EDP”. The accused persons challenged those investigation measures before the Vienna court of appeal, which referred to the CJEU several questions about the extent of the judicial review which it should carry out for the purpose of authorising the investigation measures which had been assigned by the German handling EDP to the Austrian assisting EDP.

The CJEU ruled that Articles 31 and 32 of Regulation 2017/1939 limit the review by the courts of the Member State of the assisting EDP to matters concerning the enforcement of those measures, to the exclusion of matters concerning their justification and adoption, which are to be assessed by the courts of the Member State of the handling EDP. The CJEU added that the latter matters must be subject to prior judicial review in the Member State of the handling European Delegated Prosecutor in the event of serious interference with the rights of the persons concerned guaranteed by the EU-Charter.

While this ruling answers a number of important questions arising in the context of criminal proceedings by the EPPO, one equally important issue is being completely ignored by it: the status under the Convention of the national authorities involved in EPPO-proceedings, i.e. the enforcement authorities, such as police forces and investigators, and the courts entrusted with reviewing procedural acts by the EPPO and adjudicating the cases brought before them by the EPPO. Are these national authorities subject to the Convention or not, in addition to them being subject to Union law? The answer to this question will determine which fundamental rights exactly will apply to EPPO-proceedings.

While it seems clear that EDPs, acting on behalf of the EPPO, an EU institution, are not subject to the Convention, the situation is less clear as regards these national authorities. This can only be decided by the ECtHR itself. Pending this clarification by the ECtHR and focussing on the national courts involved in proceedings initiated by the EPPO, it should be recalled that the creation of the EU and its predecessor organisations did not remove the responsibility of the Member States under the Convention for their application of Union law (see, among others, Bivolaru and Moldovan v. France). Neither does Regulation 2017/1939 provide that the national courts would act as EU courts when involved in EPPO-proceedings.

It can therefore be assumed that the national courts, when involved in such proceedings, remain national courts and, in this capacity, remain bound to apply Union law in conformity with the Convention. In any event, any other solution would deprive citizens who are the subject of EPPO-proceedings of the possibility of filing an application for external review of these proceedings by the ECtHR. Their fundamental rights would in that case be less well protected than those of the persons who are subject to proceedings initiated by national prosecutors under national law, which would be unacceptable.

Thus, as things currently stand, two partially different sets of European fundamental rights apply to a single set of EPPO-proceedings, depending on the acting institution: the sole EU rights in respect of legal acts by the EDPs, and a combination of EU and Convention rights in respect of legal acts by the national courts and perhaps also by the national enforcement authorities. This distinction becomes relevant in all cases where the level of protection between EU and Convention fundamental rights differs.

Fortunately, in criminal proceedings more than in any other area, the CJEU seems to be taking greater care in avoiding discrepancies with the Strasbourg case-law, which is beneficial to the coherence of the European standards in criminal procedure and facilitates the challenging task of national judges (see Greater convergence). However, some differences remain, e.g. with the application of the ne bis in idem principle (see Convention control, at p. 342) or with some aspects of the right to legal assistance such as the free choice of a lawyer.

What is helpful in this context, though, is that Article 41(2) of Regulation 2017/1939 provides that suspected or accused persons shall, “at a minimum”, have the procedural rights provided for in Union law enumerated in that provision (§ 76). This seems to indicate that the level of protection guaranteed by the latter can be raised if need be.

At the same time, this duality of European sources of fundamental rights can prove useful, as it will allow national judges to also rely on the Strasbourg case-law on the right to a fair trial in criminal matters which, being developed since more than 70 years, is indeed richer and more comprehensive than the Luxembourg case-law on these issues and, in any event, by virtue of Article 52(3) of the EU-Charter, represents a mandatory minimum protection standard which is also applicable under EU law.

Even so, the fact nonetheless remains that under the scheme put in place by Regulation 2017/1939, such “double standards” distort the uniformity which should in principle characterize, throughout criminal proceedings, the fundamental rights applied to the latter. For how coherent is it for an accused to be entitled to claim a level of protection which did not apply to the prosecutor in the very same case? Both should rather play by the same rules. If not, and in the event, as a result, of a failure by national courts to comply with the Convention, the Member State concerned would, in addition, incur liability in Strasbourg for action by an independent EU institution over which it has no control. The only way to minimize the impact of such distortions would be for the EU to become a Contracting Party to the Convention, along with its own Member States (for a more detailed analysis of the impact of the Convention on criminal proceedings of the EPPO, turn to No case to answer).

One can only regret that the authors of Regulation 2017/1939 did not adopt a wholistic approach which would have allowed them to address these important issues and help avoid yet another layer of complexity in this area.