Authors: Corrado Rossitto; Pietro Suchan
Committe: Prosecutors Committee
Date:31/01/2025
The Decision of the Court of Catania
On March 18, 2024, the Court of Catania pronounced a judgment that became final on June14, following the declaration of inadmissibility of the appeal by the “Corte di Cassazione”. With this decision, the Court of Catania, examining an application submitted by the lawyer of a suspect under investigation and subjected to the precautionary measure of house arrest for crimes related to criminal association aimed at carrying out carousel fraud on a transnational scalethrough the creation of fictitious companies, including foreign entities, the issuance of invoices and other documents for non-existent operations, the presentation of fraudulent annual tax returns, the undue compensation of taxes, and several episodes of bankruptcy to evade VAT in specific commodity and commercial sectors, including the trade of alcoholic and non-alcoholic beverages-rejected the appeal. The appeal was based, among other things, on a defensive challenge regarding the alleged incompetence of the EPPO, as outlined in Article 22 of EU Regulation (2017/1939). In this context, the General Court formulated the following principle of law, which is particularly relevant to the issue at hand:
” The EPPO’s competence is established in relation to the disputes, legitimately carried out in anticipation of the aggravating circumstance of transnationality referred to in Article 61-bis of the Italian Criminal Code, due to the suspects’ use of companies operating in both Italian and Bulgarian territories. The fact that this circumstance was not considered by the GIP has no influence on the legitimacy of the challenge and, consequently, on the competence of the EPPO to request the precautionary measure.”
Conclusion: The challenges, formally and correctly raised by the EPPO, constitute the sole criterion for determining its competence.
The Decision of the Court of Palermo
The case before the Court of Palermo concerned an appeal against house arrest for alleged embezzlement and corruption, involving the defendant, the Defence, and the European Public Prosecutor’s Office. The legal principle established by this crucial decision, in line with the provision of the Court of Catania, is as follows:
The court ruled that no invalidity or nullity arises from a precautionary order issued by the “Giudice per le Indagini Preliminari” (GIP) at the request of the EPPO. The fundamental principle established is that the potential lack of jurisdiction of the EPPO is considered an internal procedural matter between the prosecution offices. Such a judicial challenge can only be raised by the national prosecutor’s office, not by the Defence.
The Court’s decision clarifies the limits of the Defence’s ability to challenge the EPPO’s jurisdiction. Therefore, only the national prosecutor can question the EPPO’s jurisdiction. This ruling underscores the coordination between the EPPO and national prosecution offices, reinforcing integrated efforts to combat EU-related crimes.
The Decision of the Court of Milan
The case submitted to the “Giudice per le Udienze Preliminari” (GUP) involved cross-border IVA evasion, so called “frodi carosello” where the investigation spanned multiple national jurisdictions, thereby falling within the EPPO’s competence.
The Defence raised doubts about the EPPO’s jurisdiction, contesting the absence of a request to proceed from the Italian Ministry of Justice by referring to Article 9 of the Italian Criminal Code. However, European Regulation (2017/1939) provides special rules for determining competence.
The GUP of Milan ruled on the matter, affirming that decisions taken by the Permanent Chamber, during the investigative phase cannot be legally contested by the judge or the prosecutor. Furthermore, Article 9 of the Italian Criminal Code does not apply, contrary to the Defence’s argument.
Conclusion
Italian jurisprudence confirms a consistent and unambiguous interpretation of the regulation establishing the European Public Prosecutor’s Office. The decisions of the courts demonstrate that competence-related issues between the national prosecutor and the EPPO are internal matters that can only be raised through a conflict of competence procedure.