EPPO: Opinion of the EU Advocate General in Case C-281/22 G. K. e.a.

Thursday 22 June 2023

Opinion in Case C-281/22 G. K. e.a. (EPPO)

(Area of Freedom, Security and Justice)

The European Public Prosecutor’s Office (EPPO) has powers of investigation and prosecution of crimes affecting the financial interests of the European Union. In this case the Court is, for the first time, invited to interpret the legal instrument establishing that Office and setting out the rules on its functioning, namely, the EPPO Regulation.

The EPPO is, through its European Delegated Prosecutor in Germany (Munich), conducting preliminary investigations against three persons who are accused of having made false declarations in order to circumvent customs provisions when importing biodiesel into the European Union, resulting in a loss of revenue of approximately € 1,295,000. That alleged loss constitutes a financial interest of the Union and thus falls within the jurisdiction of the EPPO.

Although the main investigation is taking place in Germany, the EPPO deemed necessary to undertake a cross-border investigation in Austria. Accordingly, the (German) handling European delegated Prosecutor assigned the search and seizure of the accused’s property in Austria.

Under Austrian law, however, such an investigative measure requires prior judicial authorisation. The assisting (Austrian) European delegated Prosecutor therefore obtained judicial warrants to search the residential and business premises of the accused persons for the seizure of potentially incriminating documents and hardware.

No prior judicial review of the requested search and seizure measures had been sought before the German courts, even though this would be required in a comparable domestic situation. Indeed, as a result of Germany’s implementation of the EPPO Regulation, German judicial authorisation is not required for cross-border investigations, if the investigation measure is to be conducted in a Member State whose law also requires prior judicial authorisation. In that case, the court of that other Member State is competent to authorise the investigation measure.

On 1 December 2021, the accused filed, before the Higher Regional Court Vienna (Austria), appeals against the search warrants approved by four Austrian courts. They submit that the search and seizure measures authorised were neither necessary nor proportionate.

The Higher Regional Court has decided to refer questions to the Court of Justice, essentially in order to learn whether it is authorised to conduct a full review (as it would do in a purely domestic situation), or, whether its review should be limited to procedural questions concerning the exercise of the cross-border investigation measures at issue.

Background Documents C-281/22