Author: Alejandro Hernández López, Associate Professor of Procedural Law University of Valladolid
Committee: Academic Committee
Date: 11/12/2024
Background
The case has its origin in the request for a preliminary ruling made by the Juzgado Central de Instrucción No 6 de la Audiencia Nacional (National High Court, Central Court) concerning the compatibility of certain provisions of Spanish law implementing the European Public Prosecutor’s Office Regulation (LO 9/2021) with EU law and, in particular, with effective judicial protection and the rights of defence of the persons concerned.
The Audiencia Nacional asks, in essence, whether the fact that it is not possible to request a judicial review against certain acts of the European Delegated Prosecutor (EDP) provided for by Spanish legislation is contrary both to the EPPO Regulation (EPPOReg) and to the Charter of Fundamental Rights (CFREU). Specifically, the referring court asks the following questions:
– Compatibility of Article 90 LO 9/2021 with Article 42 RegEPPO
– Compatibility of Article 90 LO 9/2021 with Articles 6 and 48 of the CFREU and Article 7 Directive (EU) 2016/343.
– Compliance with those provisions with the principle of equivalence laid down in Article 86.3 TFEU
– Breach of the principle of effectiveness (Article 19 (1) TEU) and of the values inherent in the rule of law as regards the right to effective judicial protection and to a fair trial (Article 2 TEU, Art. 47 TFEU).
Advocate General’s reply
In the first place, the Advocate General contends that the second question is inadmissible as hypothetical and proposes that the first, third and fourth questions be reformulated and examined together.
On the substance of the examination, the key issue is whether the Decree of the Spanish EDP summoning a third party to appear as a witness constitutes a procedural act of the EPPO intended to produce legal effects vis-à-vis third parties (third parties understood in a broad sense, which naturally includes the persons under investigation), within the meaning of Article 42 (1) RFE, in which case it is necessary to provide for judicial review of the act by the competent national courts.
According to the Advocate General, it can be inferred from the interpretation of Article 42 (1) of the RegEPPO and its comparison with the wording of Article 263 TFEU that the European legislature intended to devise a system of judicial review appropriate to the specific nature of the EPPO. In that letter, the acts of that court which would normally have been subject to judicial review by the EU Courts by means of a direct action are subject to judicial review before the national courts, thereby ensuring compliance with the second subparagraph of Article 19 (1) TEU and Article 47 of the Charter.
It is for the national court to determine whether the decree, specifically analysed, is indeed a measure intended to produce binding legal effects such as to affect the interests of the requested persons by bringing about a distinct change in their legal position. To that end, it must examine the substance of the decision and assess its effects in the light of objective criteria, such as its content, taking into account, where appropriate, the specific procedural context in which it was taken and the powers of the body which adopted the decision.
If, following that examination, the Juzgado Central de Instrucción No 6 of the Audiencia Nacional concludes that the decree by which an EDP authorised to summoned a third party to appear as a witness is not intended to produce legal effects vis-à-vis persons under investigation, the national legislation precluding judicial review of that decree would be perfectly compatible with Article 42 (1) of the EPPOReg, read in the light of Article 47 of the Charter, the second paragraph of Article 19 (1) TEU and the principles of equivalence and effectiveness. On the other hand, if it concludes that that decree is intended to produce legal effects vis-à-vis with regard to the persons under investigation, the Spanish legislation would be contrary to EU law if it does not allow that decision to be challenged directly before a national court.
As regards the nature and scope of the judicial review, the Advocate General points out that it must be carried out in the context of the procedural autonomy of the Member States. This means that the Regulation does not determine the nature of such judicial review or the type of decision that a national court may take in its exercise. Accordingly, it is sufficient for there to be one or more remedies before the competent national courts to enable the holder of that right to obtain indirect judicial review of the lawfulness of a measure ensuring respect for the rights and freedoms guaranteed by EU law to that person. Again, it is for the Spanish court to determine whether the persons under investigation may indirectly challenge the legality of a decree by which the EDP summoned a third party to appear as a witness.
Finally, in the light of the principles of equivalence and effectiveness, the persons under investigation cannot be in a different and less advantageous situation when they assert rights which derive directly from EU law, compared with the situation in which they are generally in the criminal proceedings in which the Spanish Ley de Enjuiciamiento Criminal (LECrim) applies; and the exercise of rights conferred by EU law by EU law must not be impossible in practice or excessively difficult. However, it does not require the Member States to provide for legal remedies other than those existing in domestic law, unless it is apparent from the broad logic of the legal system at issue that there is no legal remedy which makes it possible, even indirectly, to ensure respect for the rights which individuals derive from EU law or if the only way for individuals to have access to a court is to infringe the law.
Conclusion
The Advocate General’s answer sets out the interpretative bases on which the solution to the present preliminary ruling request will most probably be answered. If that is the case, it seems that the exclusion from judicial review of certain acts provided for in Article 90 LO 9/2021 will not be compatible with EU law in so far as those acts can produce legal effects vis-à-vis investigated persons, victims or genuine third parties. This would undoubtedly require Spain to amend its domestic legislation, or our courts to interpret national law in conformity with EU law. Pending the forthcoming decision of the Luxembourg Court and possible legislative amendments, we will see whether the interpretation of the Spanish Courts is sufficient to ensure the operational character of the right to effective judicial protection, as it also depends to a large extent on the success of the investigations conducted by the EPPO.