Case T‑103/23
Victor-Constantin Stan
v
European Public Prosecutor’s Office
Order of the General Court (Tenth Chamber) of 15 December 2023
(Action for annulment – Article 42(1) and (2) of Regulation (EU) 2017/1939 – Decision of the Permanent Chamber of the European Public Prosecutor’s Office to bring the case to judgment – Procedural act of the European Public Prosecutor’s Office – Lack of jurisdiction)
1. EU law – Interpretation – Methods – Prohibition on interpreting EU law contra legem
(see paragraph 30)
2. Action for annulment – Jurisdiction of the EU judicature – Scope – Power of the General Court to rule on procedural acts of the EPPO – Precluded
(Art. 263 TFEU; Council Regulation 2017/1939, Art. 42(1) and (2))
(see paragraphs 31, 36)
Résumé
Following the reports made by two individuals to the Direcția Națională Anticorupție – Serviciul Teritorial Timişoara (National Anticorruption Directorate, Timişoara Territorial Section, Romania), a European Delegated Prosecutor in Romania (‘the Prosecutor’) opened an investigation in January 2022 on the ground that several persons had, since 2018, committed offences enabling them unlawfully to obtain funds from the budget of the European Union and the budget of the Romanian State.
In the course of that investigation and following an order from the Prosecutor, Mr Victor-Constantin Stan acquired the status of defendant in respect of acts, committed as a co-perpetrator, of unlawfully obtaining Romanian funds, punishable under the Romanian Criminal Code. According to the Prosecutor, Mr Stan had, for several years, submitted to the Romanian authorities false, inaccurate and incomplete documents concerning projects submitted by six companies with a view to obtaining funds from the Romanian national budget.
In December 2022, the European Public Prosecutor’s Office (‘EPPO’) decided to bring the case concerning, inter alia, Mr Stan to judgment and dismissed the part of the case relating to acts of corruption and forgery not concerning him (‘the contested decision’).(1)
Mr Stan initiated proceedings before the General Court seeking, inter alia, annulment of the contested decision and requested that the Court declare that it has jurisdiction. To that effect, he, inter alia, claimed that Regulation 2017/1939 on the establishment of the EPPO, (2) which provides for, a priori, the exclusive jurisdiction of national courts for the review of the validity of the EPPO’s procedural acts, does not meet the requirements of the right to an effective remedy and to a fair hearing, as laid down by Article 47 of the Charter of Fundamental Rights of the European Union.
In its defence, the EPPO raised pleas of inadmissibility, on the ground that, inter alia, the Court does not have competence to rule on the claim for annulment directed against the contested decision, since Article 263 TFEU which relates to direct actions does not apply, in this instance, to procedural acts of the EPPO.
Hearing the action and the plea of inadmissibility, the Court rules on the novel question of the division of jurisdiction between the EU judicature and the national courts so far as concerns the judicial review of procedural acts of the EPPO and dismisses the action on account of its lack of jurisdiction to hear it.
Findings of the Court
First of all, the Court notes that the judicial review of procedural acts of the EPPO is provided for in Article 42 of Regulation 2017/1939. That article lays down that procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties are subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law.(3) Moreover, it states that, in accordance with Article 267 TFEU, the Court of Justice has jurisdiction to give preliminary rulings, (4) first, concerning the validity of procedural acts of the EPPO, in so far as such a question of validity is raised before any court or tribunal of a Member State directly on the basis of EU law, secondly, concerning the interpretation or validity of provisions of EU law, including the regulation on the establishment of the EPPO, and, thirdly, concerning the interpretation of Articles 22 and 25 of that regulation in relation to any conflict of competence between the EPPO and the competent national authorities.
Furthermore, Article 42 expressly restricts the EU judicature’s jurisdiction to review legality, under Article 263 TFEU, to certain types of decisions of the EPPO, (5) such as those aimed at dismissing a case without taking further action, provided that they are contested directly on the basis of EU law, those that affect the protection of data of the persons concerned as well as those of the EPPO which are not procedural acts, such as decisions concerning the right of public access to documents, decisions dismissing European Delegated Prosecutors or any other administrative decisions.
Next, as regards the possibility of basing the jurisdiction of the General Court on a broad interpretation of Article 42 of Regulation 2017/1939, or one that is in conformity with EU law, the Court recalls the settled case-law according to which recourse to a broad interpretation is possible only in so far as it is compatible with the wording of the provision at issue and that even the principle of interpretation in conformity with a rule of superior binding force cannot serve as the basis for an interpretation that is contra legem.
In this instance, the Court states that, for the judicial review of procedural acts adopted by the EPPO, the wording of Article 42(1) and (2) of Regulation 2017/1939 is in no way ambiguous inasmuch as those provisions confer on national courts exclusive jurisdiction to hear and determine procedural acts of the EPPO which are intended to produce legal effects vis-à-vis third parties, apart from the exceptions laid down in paragraphs 3 and 8 of that article. Therefore, it is only by way of preliminary ruling that the Court of Justice is called upon to rule on (i) the validity of those acts in the light of provisions of EU law and (ii) the interpretation or validity of provisions of the regulation at issue.
In the light of the foregoing, the General Court finds that, by requesting it to annul the contested decision and, consequently, to declare that it has jurisdiction, on the basis of an interpretation of the regulation on the establishment of the EPPO in the light of the right to an effective remedy, the applicant is proposing an interpretation contra legem, which cannot be accepted.
Even if the applicant does not confine himself to requesting a broad interpretation of Regulation 2017/1939 in order to claim that the Court has jurisdiction in the present case and that he intends to challenge the contested decision by contesting, by way of the plea of illegality, the validity of the regulation at issue in the light of Article 19 TEU, such a challenge cannot be accepted, on account of the Court’s lack of jurisdiction to hear and determine the main action.
In that regard, the Court observes that, in the context of the judicial review provided for by Regulation 2017/1939, the Court of Justice has jurisdiction, inter alia, under Article 267 TFEU to rule on questions of interpretation and validity of (i) procedural acts of the EPPO and (ii) provisions of EU law, including that regulation.(6)
In the present case, the applicant may, in principle, challenge before the competent national courts the procedural acts of the EPPO referred to in Article 42(1) of Regulation 2017/1939 and, in that context, plead its illegality. In that situation, it will be for the Court of Justice, if the national court makes a reference to it, to rule on the validity of Article 42 of that regulation and, where appropriate, on the validity of the internal rules of procedure in the light of Regulation 2017/1939 and the other provisions of EU law relied on by the applicant in his application.