On Thursday 21 December, the Court of Justice of the EU (CJEU) handed down a ruling in which it clarifies the exercise of judicial review of cross-border investigative measures by national courts, and considers that a European Delegated Prosecutor (EDP) must confine himself to questions relating to the implementation of cross-border investigative measures (Case C-281/22).
The CJEU had been questioned by an Austrian judge who wanted to know whether he was entitled, as an EDP assisting in a case in Germany, to carry out a full review - comparable to what he would do in a purely domestic situation -, or whether his review should, in this case, be limited to procedural issues relating to the implementation of the investigation measures concerned.
The Austrian judge had to carry out searches and seize assets for the purposes of the investigation conducted by the European Public Prosecutor's Office, for which a German EDP was responsible.
The defendants in this investigation, which concerns fraud involving the import of biodiesel into the EU and is estimated to have caused damage to the EU's financial interests of around €1.295 million, had challenged the investigative measures implemented by the Austrian judge.
In its judgment, the CJEU first states that the supervision of the European Delegated Prosecutor must be limited to questions relating to the implementation of cross-border investigation measures. “The adoption and justification of an investigative measure are governed by the law of the Member State of the EDP responsible for the case, whereas the execution of such a measure is governed by the law of the Member State of the assisting EDP”, explains the CJEU in detail.
However, it adds, “in the case of investigative measures involving serious interference with fundamental rights”, such as searches, it is the responsibility of the Member State of the EDP responsible for the case - in this case Germany - to provide in national law “adequate and sufficient safeguards, such as prior judicial review, to ensure the lawfulness and necessity of such measures”.
See the judgment: https://aeur.eu/f/a8b (Original version in French by Thomas Mangin)