Author: Matteo Ianni
Committee: Academic Committee
Date: 21/07/2024
In a very recent judgment of the General Court of the European Union of 10 July 2024, the Union’s judicial body ruled on the appeal brought against the decision of the European Public Prosecutor to reject the candidature of the Italian Delegated European Prosecutor.
The central issue characterising the case before the Tribunal was precisely the provisions of Article 17(1) of Regulation 2017/1939 and Decision No 13/2020, adopted by the European Public Prosecutor in November 2020, which lays down the rules governing the procedure for appointing the Delegated European Prosecutors referred to in the aforementioned Article 17 of the Regulation.
Article 3 of the Decision No 13/2020 lays down a multi-stage procedure for the examination and subsequent acceptance or rejection of the candidature of a Delegated European Public Prosecutor by the various players: the Chief European Public Prosecutor plays a central role, together with the College of Prosecutors (which takes the final decision) and a working party of several prosecutors called on to give an opinion in the most complex cases.
As summarised in the factual part of the judgment, the appellant criticises the decision rejecting her candidature on three counts: first, the obligation to state reasons and the possible misuse of power by the European Public Prosecutor; second, infringement of the principle of equal treatment and of the essential procedural requirements of the acts which led to the rejection of her candidature; and, third, infringement of Decision 13/2020 by the European Public Prosecutor.
First of all, the Court finds that the abovementioned Decision 13/2020 is binding on the European Public Prosecutor itself, having analysed the text of that decision and the objectives which characterised the procedure for its adoption.
In the light of the foregoing, the appellant submits that the European Public Prosecutor infringed his own rules by omitting one of the stages provided for in the decision, namely the additional request for documents to the Italian authorities which should precede the stage of setting up the working party responsible for giving an opinion on the candidature of the Delegated European Public Prosecutor. The judgment stated that, although the European Public Prosecutor was obliged to complete all the stages, he was not obliged in this case to request further documents, since the text of the decision made such a request conditional on the insufficiency of the documents already received, a condition which had not been met in this case.
The second, and in this author’s view more interesting, criticism raised by the appellant concerns the composition of the working party, which, according to the appellant, was made up of prosecutors from smaller Member States with legal systems not comparable to that of Italy and who were therefore not in a position to have a proper understanding of the quantity and quality of the offences and of the experience of the Italian judge. The Tribunal rejects this criticism in its entirety, pointing out that European Public Prosecutors act independently of their national origin, since they are appointed to carry out their duties irrespective of their origin and the nature of the cases they may be called upon to deal with. It is therefore not only possible, but necessary, for them to be able to understand the phenomena that characterise all the different States involved in the European Public Prosecutor’s Office.
For all the reasons set out above, the Court considered that the third plea in law was unfounded and rejected it.
The Court then proceeded to examine the first plea in law, alleging an obligation on the part of the European Public Prosecutor to give reasons for his acts. This plea allowed the Tribunal to comment once again on the content of the duty to state reasons, confirming its established case-law that this duty does not have a general content but must be declined on a case-by-case basis. The Court recalled that the duty to state reasons does not require that all the relevant factual and legal elements be set out in each individual decision or act, but that that requirement must be assessed in the light of the circumstances of the case.
It is precisely in the light of that reasoning that the Court of First Instance held that the decision of the European Public Prosecutor should be annulled and that he should be ordered to pay the costs, since he had not communicated to the appellant the reasons for his decision in the form required by the case, referring first to the opinion of the working party, to which the appellant had access only in the course of the proceedings before the Court of First Instance. The European Public Prosecutor, once he had become the defendant before the Union’s judicial body, defended itself by arguing that the appellant could already have been aware of the reasons for the rejection of his candidature by virtue of a letter sent to him after the first interview with the European Public Prosecutor and a further interview.
The Court of First Instance did not uphold that argument, firstly because the appellant had not had access to the opinion of the panel (and was therefore not aware of its contents) and, secondly, because the Court of First Instance considered that, in this case, the duty to state reasons required it to include in the decision informing the appellant of the rejection of her candidature the logical sequence of events leading to the rejection of her candidature, since it could not rely less on the interview with her or the letter sent to her, considering that those acts and documents were not sufficient to justify the choice of the European Public Prosecutor.
Finally, as already mentioned, the Court ordered the European Public Prosecutor to pay the costs and annulled the rejection decision on the ground of failure to state reasons, without ruling on the merits of the applicant’s candidature. This judgment is interesting because, on the one hand, it enabled the Court to examine the rules governing the appointment of the Delegated European Prosecutors, thus making it possible to analyse the duty to state reasons for the European Public Prosecutor’s acts in a specific case, and, on the other hand, it recalled the independence of the European Public Prosecutors, who are required to perform their duties irrespective of their country of origin.
In view of the numerous criticisms of the European Public Prosecutor’s Office from the point of view of respect for the rule of law, often made by well-known criminalists, this judgment should reassure the doctrine of the not merely formal but pragmatic and real role of the Court of Justice of the European Union in the rulings which characterise the operation (or, in this case, the conditions) of the European Public Prosecutor’s Office.