Author: Marta Ramat
Committee: Academic Committee
Date: 10/11/2024
This short post is to announce that an insightful article, commenting on the famous G.K. and Others judgment of the CJEU, has been recently published (in Italian) in Issue 1-2/2024 of the Italian law journal Diritto comunitario e degli scambi internazionali. The article is written by Enrico Traversa, Former Director of the Justice Team of the Legal Service of the EU Commission, currently Adjunct Professor of EU Law at the Political Sciences and International Relations Department of the University of Bologna and Chair of the Steppo Academic Committee.
The contribution proposes a thorough analysis of the two core parts of the Court’s ruling: on one hand, the limitation of judicial scrutiny carried out by the judge or court in the assisting EDP’s Member State to enforcement and procedural aspects of the assigned investigation measure; on the other hand, the obligation, on the handling EDP’s Member State, to provide for prior judicial review of investigation measures which seriously interfere with fundamental rights of the suspect.
This commentary is particularly interesting for two main reasons: first, it provides an in-depth analysis of inconsistencies and lacunae characterising Articles 31 and 32 of the EPPO Regulation; furthermore, it advocates for intervention by the EU legislature, in order to better define the content of prior judicial review in the handling EDP’s Member State, as well as the range of measures subject thereto.
You can find hereunder an abstract of the contribution in English. The Open Access version of the article is available HERE.
The Author examines thoroughly the first judgement of the EU Court of Justice concerning the interpretation of EU Regulation n. 2017/1939 on the establishment of the European Public Prosecutor’s Office and more precisely the interpretation of its Articles 31 and 32 governing «Cross-border investigations». In the main proceedings the European delegated prosecutor (EPD) of Munich (Germany) «handling the case» ordered a search and assigned such investigative measure to a EDP based in Vienna who carried out it after having obtained the authorisation of the Austrian competent judge. The Defendants challenged this decision before the Vienna Court of Appeal that requested the Court of Justice to rule on the following question: which are the criteria of assessment of a cross-border investigative measure to be applied by the judge of the Member State where such measure is to be carried out? For the Court of justice the control of the investigative measure by such a judge has to be confined to compliance with purely procedural rules governing the execution of the «assigned» investigative measure in the Member State of the «assisting» EDP. An examination of the substantive requirements of the investigative measure by this same judge would indeed bring about the need of transmitting the whole case file from the Member State of the «handling» EDP to the Member State of the «assisting» EDP. Furthermore in most cases tens or even hundreds of relevant evidence documents would need to be translated from an official language to another. The Court of Justice has nevertheless coupled such substantial limitation of the control powers of the judge of the Member State of the assisting delegated prosecutor with a clear obligation imposed upon the Member State of the «handling» European delegated prosecutor. Such a Member State will be obliged to introduce into its rules of criminal proceedings a prior judicial review on all the investigative measures which seriously interfere with the fundamental rights of the accused persons.