Editorial of December 2017


by Alessandra Silveira, Editor
and Joana Abreu, Junior Editor

European Public Prosecutor’s Office, fundamental rights and preliminary reference: disquietudes and expectations

With the establishment of the European Public Prosecutor’s Office (EPPO) [i] (in the different Member States that will adhere to the respective enhanced cooperation), the European citizens will be in touch with national and European authorities regarding the criminal prosecution in the scope of the offences against the Union’s financial interests. This scope may eventually be enhanced  to include serious crimes having a cross-border dimension through a unanimous decision of the European Council in accordance with Article 86(4) of the TFEU. The members of EPPO (European Delegated Prosecutors) are active members of the national Prosecutor’s Office in each Member State to whom will be granted powers of investigation and prosecution with independence. When investigating and prosecuting criminal cases under the competence of EPPO they shall i) act in the interest of the Union as a whole, ii) act exclusively in representation and on behalf of EPPO in the territory of the respective Member State and iii) neither seek nor take instructions from any person external to the EPPO.

It is, therefore, a sort of hybrid institution, completely new in the European structure. This is why it is important to consider the indispensable institutional conditions to its (political and legal) control in the light of the fundamental rights protected by the European legal order. Well, the more the borders between national and European competences are diluted harder it becomes to define the applicable standard of fundamental rights protection in whichever case in question (i.e., the level of protection). According to the division of competences expressed in Article 51(1) of the CFREU, the field of application of the Charter depends on whether or not EU law is being applied in the case. In other words, in the field of application of the EU law the applicable level of fundamental rights protection is the one of the Union, but out of the scope of the EU law the applicable level of protection shall be the one of the national constitution. Hence, to apply the level of protection resulting from the CFREU we must know, beforehand, if the solution of the case falls under the EU law. Indeed, if it was not already difficult to decipher the “riddle of the Sphinx” of the scope of application of the CFREU in the absence of EPPO’s hybridism, everything becomes more complex and sophisticated with it.

Moreover, Article 86(3) of the TFEU allows EU lawmakers to determine the applicable rules to the judicial review of procedural acts adopted by EPPO in the exercise of its functions. Such competence conferred to the EU lawmakers reflects the specific nature of the functions and structure of EPPO, that is distinct from all other institutions and organs of the EU and requires special rules concerning the judicial review. In that regard, the Regulation introduces unprecedented solutions of jurisdictional control whose consequences in the EU litigation system are still generally unpredictable, namely as far as the preliminary ruling procedure goes.

Well, under Article 86(2) TFEU, the EPPO exercises its functions in the competent courts of the Member States. For that reason the Regulation states that the procedural acts of the EPPO (or their absence, when it was obliged to that) which are  intended to produce legal effects vis-à-vis third parties shall be subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law [Article 42(1)]. In any case, when national courts control the validity of such procedural acts they may do it based on EU law, including the Regulation that orders EPPO, and equally based on the applicable national law if the matter in question is not provided for in the regulation. To this extent, the regulation states the possibility of the appreciation of the validity of procedural acts of the EPPO under a preliminary ruling procedure on the basis of Union law [Article 42(2)(a)].

Indeed, the preliminary reference has always served to control the validity of legal acts adopted by the institutions, organs and organisms of the Union (namely the legally binding acts stated in Article 288, TFEU – regulations, directives, decisions), and not properly to control the validity of procedural acts produced by an hybrid organ as the EPPO will be – thus our expectation on the development of such novelty.

As prescribed by Article 42(2)(a) of the Regulation, the Court of Justice has jurisdiction to give preliminary rulings concerning the validity of the procedural acts of the EPPO, in so far as such a question of validity is raised before any court or tribunal of a Member State directly on the basis of Union law (highlighted). It seems to result from this that the making of a reference to the CJEU, grounded on the unlimited freedom recognised to national judges, might be reduced because it will depend on the invocation of that question of validity of the procedural act as it cannot be ignited ex officio.

Even more so: considering the references are always mandatory (in the light of the Foto-Frost case), the solution indicated in Article 42(2)(a) might even compromise that obligation (grounded on the uniformity of application of the EU law), since notwithstanding a judge ex officio notices a problem of validity of a procedural act, if such problem is not raised, then the judge (apparently) could not make the reference for a preliminary ruling.

If this is the teleology of the European lawmaker, the systemic coherence of the preliminary ruling procedure – rooted in the unlimited freedom recognised to national judges, especially after the Rheinmühlen-Düsseldorf judgement – might be affected. From that judgement it emerges that national courts or tribunals have the unlimited freedom to make a reference to the CJEU if they consider that a given pending case under their jurisdiction raises questions concerning the interpretation or the appreciation of the validity of EU law provisions , based on which they must rule.

The exclusive dependence of a procedural boost of the parties to trigger the reference for a preliminary ruling would presuppose in itself a setback of the very conception of the preliminary ruling procedure as a dialogue between Courts – and upon which the legal model of the European integration is built. After all, in these types of references, the national courts would become mere judicial intermediaries and not the competent organs (in the full meaning of the expression) to promote such dialogue. Ultimately, the solution adopted by the regulation may jeopardise the uniform application of the EU law – to which the preliminary ruling was (precisely) created.

We alert, therefore, to the integrative reading that some of the Regulation’s provisions demand specially as far as the preliminary ruling procedure goes, mostly when the preliminary ruling of validity is seen as one of the judicial mechanisms that contains the virtue of functioning as a constitutional control of the European fundamental rights’ level of protection.


[i] See Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’). For those Member States which will participate in the enhanced cooperation (taking into consideration decision adopted under article 331(1), 2nd and 3rd paragraph of the TFEU), the mentioned Regulation is applicable since the date indicated in the referred decision.

Picture credits: They did not… by Senator Claire McCaskill.

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