Who’s Afraid of EU Primary Law? Judicial Review of the EPPO’s Decision on Forum Choice
| Author | Andrijana Zivic,Timo Zandstra,Quintijn Pit,Antonia Vegt-Schouten |
| DOI | http://doi.org/10.1177/20322844221139812 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
Article
New Journal of European Criminal Law
2022, Vol. 13(4) 398–419
© The Author(s) 2022
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DOI: 10.1177/20322844221139812
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Who’s Afraid of EU Primary
Law? Judicial Review of the
EPPO’s Decision on Forum
Choice
Andrijana Zivic
Utrecht University Faculty of Law Economics and Governance, Utrecht, Netherlands
Timo Zandstra
Utrecht University Faculty of Law Economics and Governance, Utrecht, Netherlands
Quintijn Pit
Utrecht University Faculty of Law Economics and Governance, Utrecht, Netherlands
Antonia Vegt-Schouten
Utrecht University Faculty of Law Economics and Governance, Utrecht, Netherlands
Abstract
The proposal for Regulation 2017/1939 establishing the European Public Prosecutor’sOffice (The
EPPO Regulation) was criticized for completely excluding the Court of Justice of the European
Union (CJEU) from judicial review of decisions on forum of prosecution by the EPPO, an EU body.
The system of judicial review under the EPPO Regulation has improved significantly relative to its
initial proposal, by enabling national courts to refer preliminary questions to the CJEU. Despite this,
several issues remain. This article examines whether the limitations imposed by the EPPO Reg-
ulation on the use of the action for annulment procedure laid down in Article 263 TFEU comply
with EU primary law. More specifically, whether it complies with effective judicial protection as
protected under Article 47 CFR, and the legal basis for the EPPO’s system of judicial review, Article
86(3) TFEU. We argue that the preliminary reference procedure is not effective enough in
remedying the limited access to the action for annulment procedure to reliably safeguard the
defendants’right to effective judicial protection. To the extent that the current system for judicial
review under the EPPO Regulation is at odds with the Article 47 CFR, the EU legislator did not have
the competence to enact it under Article 86(3) TFEU. This article proposes that in order to
Corresponding author:
Andrijana Zivic, Utrecht University Faculty of Law Economics and Governance, Janskerkhof 3, Utrecht 3512 BR,
Netherlands.
Email: a.zivic@uu.nl
circumvent the unlawful restrictions imposed by the EPPO Regulation, defendants could and should
make use of the action for annulment procedure to contest the EPPO’s choice of forum.
Keywords
EPPO, forum choice, judicial review, effective judicial protection, action for annulment
Introduction
After decades of intense negotiations, those keen on optimizing criminal law enforcement on the
European Union (‘EU’) level finally had their cake. With the entry into operations of the European
Public Prosecutor’sOffice (‘EPPO’) on 1 June 2021, there now exists an EU body with criminal
investigative and prosecuting powers which specifically aims to combat crimes against the EU’s
financial interests.
1
The EPPO is competent to prosecute crimes against the financial interests of the
EU (‘PIF offences’)asdefined in the PIF Directive (Directive (EU) 2017/1371),
2
participation in
a criminal organization (as defined in Framework Decision 2008/841/JHA) that is focuse d on
committing PIF offences,
3
and other offenses that are ‘inextricably linked’to PIF offences (ex-
cluding participation in criminal organizations focused on PIF offences).
4
The prosecution of
offences that are ‘inextricably linked’to PIF offences is subject to the limitations imposed by Article
25(3) of the EPPO Regulation (‘EPPO Regulation’), such as the principle of preponderance, and
further criteria.
5
In practice, this means that, for example, the embezzlement of EU funds through the
use of false and inaccurate documents and statements will now be prosec uted more effectively.This
is a big step forward, especially in contexts of financial crimes that contain a cross-border
dimension.
6
The EPPO is a highly innovative prosecution body. Being a creature of the EU’s composite legal
order, the EPPO finds itself regulated by both EU law (most importantly the EPPO Regulation) and
national law.
7
The EPPO therefore operates on both the national and EU level.
8
At times, it is
unclear when and where the EPPO should be understood to operate on a national level or on the EU
level. However, when the EPPO decides to go ahead and prosecute a case, it does so before national
1. Council Regulation (EU) 2017/1939 of 12 October 2017 implementingenhanced cooperation on the establishment of the
European Public Prosecutor’sOffice [2017] OJ L 283/1 (‘EPPO Regulation’).
2. EPPO Regulation (n 1) art 22(1); Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017
on the fight against fraud to the Union’sfinancial interests by means of criminal law [2017] OJ L 198/29.
3. EPPO Regulation (n 1) art 22(2); Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against
organised crime [2008] OJ L 300/42 (‘PIF Directive’)
4. EPPO Regulation (n 1) art 22(3).
5. EPPO Regulation (n 1) art 25(3).
6. Michele Panzavolta, ‘Choosing the National Forum in Proceedings Conducted by the EPPO: Who Is to Decide?’in
Lorena B Winter (ed), The European Public Prosecutor’sOffice: The Challenges Ahead (Springer 2018) 73; Fabio
Giuffrida, The European Public Prosecutor’sOffice: King without kingdom? (CEPS 2017) 19-20; Martin Wasmeier,‘The
choice of forum by the European public prosecutor’in Leendert H Erkelens, Martha Pawilk and Arjen W H Meij (eds),
The European Public Prosecutor’sOffice: An extended arm or a two headed dragon? (Asser Press 2015) 149.
7. EPPO Regulation (n 1); Leonard F M Besselink, A Composite European Constitution (Europa Law Publishing 2007).
8. EPPO Regulation (n 1); Leonard F M Besselink, A Composite European Constitution (Europa Law Publishing 2007).
Zivic et al. 399
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