ORDER OF THE GENERAL COURT (Tenth Chamber)
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)
In Case T‑103/23,
Victor-Constantin Stan, residing in Bucharest (Romania), represented by A. Şandru and V. Costa Ramos, lawyers,
applicant,
v
European Public Prosecutor’s Office, represented by L. De Matteis, F.‑R. Radu and E. Farhat, acting as Agents,
defendant,
THE GENERAL COURT (Tenth Chamber),
composed of O. Porchia (Rapporteur), President, M. Jaeger and P. Nihoul, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure, in particular:
– the application lodged at the Court Registry on 23 February 2023;
– the plea of inadmissibility raised by the European Public Prosecutor’s Office by separate document lodged at the Court Registry on 31 May 2023;
– the applicant’s observations regarding the plea of inadmissibility lodged at the Court Registry on 17 July 2023;
– the applications to intervene lodged by the Council of the European Union, the European Commission and the European Parliament at the Court Registry on 3, 14 and 22 June 2023 respectively,
makes the following
Order
1 By his action under Article 263 TFEU, the applicant, Mr Victor-Constantin Stan, seeks the annulment of the decision of Permanent Chamber No 4 of the European Public Prosecutor’s Office of 9 December 2022 by which the latter brought the case concerning him to judgment (‘the contested decision’).
Background to the dispute
2 On 22 December 2021, the Direcția Națională Anticorupție – Serviciul Teritorial Timişoara (National Anticorruption Directorate, Timişoara Territorial Section, Romania) recorded reports made by two individuals concerning the possible commission of criminal offences.
3 By decision of 20 January 2021, the handling European Delegated Prosecutor in Romania requested the evocation of the case recorded with the National Anticorruption Directorate, Timişoara Territorial Section.
4 On 27 January 2022, the handling European Delegated Prosecutor in Romania opened an investigation. According to him, from 2018, several persons committed offences enabling them unlawfully to obtain funds from the budget of the European Union and the budget of the Romanian State.
5 On 28 June 2022, following an order of 27 June 2022 of the handling European Delegated Prosecutor in Romania, the applicant acquired the status of defendant in respect of acts, committed as a co-perpetrator, of unlawfully obtaining Romanian funds, punishable under Article 306 of the Romanian Criminal Code. According to the handling European Delegated Prosecutor in Romania, during the period from 27 December 2018 to 31 August 2021, the applicant submitted false, inaccurate and incomplete documents to the Agenția pentru Întreprinderi Mici și Mijlocii, Atragere de Investiții și Promovarea Exportului Timișoara (Agency for Small and Medium-sized Enterprises, Investment Attraction and Export Promotion, Timișoara, Romania) concerning projects submitted by six companies with a view to obtaining funds from the Romanian national budget.
6 On 9 December 2022, Permanent Chamber No 4 of the European Public Prosecutor’s Office adopted the contested decision, by which it brought the case concerning, inter alia, the applicant to judgment and dismissed the part of the case relating to acts of corruption and forgery not concerning the applicant.
7 On 19 December 2022, the handling European Delegated Prosecutor in Romania submitted the indictment and the applicant was tried before the Tribunalul Bucureşti (Regional Court, Bucharest, Romania) for the offence of unlawfully obtaining funds.
Forms of order sought
8 The applicant claims that the Court should:
– annul the contested decision and subsequent acts;
– where appropriate, declare inapplicable the provisions of the internal rules of procedure of the European Public Prosecutor’s Office which are contrary to Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ 2017 L 283, p. 1).
9 By its plea of inadmissibility, the EPPO contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
10 In response to the plea of inadmissibility, the applicant claims that the Court should:
– reject the plea of inadmissibility raised by the EPPO;
– in the alternative, reserve its decision until it rules on the substance of the case.
Law
11 Under Article 130(1) and (7) of the Rules of Procedure of the General Court, if the defendant makes an application to that effect, the Court may decide on the inadmissibility of the action or its own competence without going to the substance of the case. In this instance, since the EPPO has applied for a decision on the inadmissibility of the action, the Court, considering that it has sufficient information from the documents before it, has decided to rule on that application without taking further steps in the proceedings.
12 The EPPO raises three objections of inadmissibility. First, it argues that the Court does not have competence to rule on the claim for annulment directed against the contested decision on the ground that Article 263 TFEU does not apply in this instance to its procedural acts. Secondly, it contends that the applicant does not have standing to bring proceedings. Thirdly, it considers that, in so far as the main action is inadmissible, the plea of illegality raised by the applicant, in accordance with Article 277 TFEU, must be rejected as inadmissible.
13 As regards the first objection of inadmissibility, the EPPO contends that the present action, brought under Article 263 TFEU, is inadmissible on the ground that the contested decision is not subject to judicial review except under the conditions laid down in Article 42 of Regulation 2017/1939, which are not satisfied in the present case.
14 In that regard, the EPPO argues that Article 263 TFEU does not apply to its procedural acts. Under Article 86(3) TFEU, Article 42 of Regulation 2017/1939 constitutes a lex specialis in relation to Article 263 TFEU. The framework for judicial review of the EPPO’s procedural acts, provided for in Article 42 of that regulation, is based on several pillars, which, taken together, constitute a system which guarantees full compliance with the procedural safeguards enshrined in the Charter of Fundamental Rights of the European Union (‘the Charter’).
15 The first pillar consists of Article 42(1) of Regulation 2017/1939, according to which the judicial review of procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties falls within the jurisdiction of the competent national court in accordance with the requirements and procedures laid down by national law. According to the EPPO, the fact that such jurisdiction is conferred on the national courts is a direct and natural consequence of the fact that the cases examined by the EPPO are brought before the competent national court. In addition, first, under the existing legal framework, only the national courts have jurisdiction to apply national law and EU law simultaneously. Secondly, in the context of its investigation and prosecution activities, the EPPO applies both EU and national law. Entrusting judicial review of the EPPO’s procedural acts to a national court which has jurisdiction to apply both national law and EU law guarantees the right to an effective remedy for persons who are the subject of investigations by the EPPO. Thus, Regulation 2017/1939 permits a partial derogation from the principles of EU law concerning the exclusive jurisdiction of the Court of Justice of the European Union to review acts adopted by the institutions, bodies, offices and agencies of the European Union as enshrined in, inter alia, the judgment of 19 December 2018, Berlusconi and Fininvest (C‑219/17, EU:C:2018:1023), inasmuch as it enables national courts to review the acts of the EPPO and to invalidate them if they infringe national law.
16 The EPPO adds that, if the procedural act of the EPPO under examination by a national court is considered contrary to a provision of EU law, Article 42(2)(a) of Regulation 2017/1939 requires national courts to request a preliminary ruling on the validity of that act, in accordance with Article 267 TFEU. Furthermore, Article 42(3) of that regulation establishes an exception to the rule laid down in Article 42(1), in order to cover any residual situation in which there could not be an appeal at national level against a decision of the EPPO to dismiss a case, and is not applicable unless the judicial review is requested on the basis of EU law.
17 Furthermore, the EPPO clarifies that, in the situation covered by Article 42(8) of Regulation 2017/1939 relating to legal acts of the EPPO which are not classified as procedural acts that are intended to produce legal effects vis-à-vis third parties, all the conditions for bringing an action, in accordance with Article 263 TFEU, must be satisfied in order for the action to be admissible.
18 Lastly, the EPPO notes the consequences, both for its functioning and for that of the Court of Justice of the European Union, of the admissibility of actions for annulment, other than those provided for, by way of exception, in Article 42(3) of Regulation 2017/1939, brought against its procedural acts. First, the EPPO’s investigations would be delayed, while the Court of Justice of the European Union would be transformed into a criminal court of appeal for a large number of criminal cases. Secondly, to declare those actions for annulment admissible would be contrary to the provisions of Article 86 TFEU and Regulation 2017/1939.
19 The applicant submits that his action is admissible. In his view, the approach defended by the EPPO is contrary to EU law. Article 42 of Regulation 2017/1939 does not meet the requirements of the right to an effective remedy and to a fair trial, laid down in Article 47 of the Charter, and undermines the jurisdiction of the Court of Justice of the European Union, governed by Article 19 TEU, to ensure that the law is observed in the interpretation and application of the EU Treaties and the autonomy of the EU legal system is respected.
20 In the first place, the applicant notes that judicial review is a mechanism which guarantees respect for the right to an effective remedy and to a fair trial. The principle of effectiveness, which is closely linked to respect for the right to an effective remedy, requires that individuals have access to adequate and effective remedies for the protection of their rights and freedoms under EU law. This cannot be achieved except by interpreting Article 42 of Regulation 2017/1939 as enabling natural persons to bring an action for annulment against decisions of the EPPO before the Court of Justice of the European Union. Similarly, national courts do not have ‘the competence or capacity to find that a decision of the Permanent Chamber’ of the EPPO is contrary to EU law, so that respect for the right of individuals to an effective remedy depends on the will of those courts to make use of the preliminary ruling mechanism. The jurisdiction of the national courts is limited to assessing whether an applicant’s pleas give rise to doubts as to the validity of the measure at issue to an extent which is sufficient to justify upholding a request, submitted by that applicant, that a reference be made for a preliminary ruling. Individuals therefore cannot freely make use of the preliminary ruling procedure. The refusal by a national court to uphold a defendant’s request that a reference be made for a preliminary ruling gives rise to a high risk that EU law will not be applied or will be incorrectly applied.
21 In addition, there are differences concerning ‘the extent to which the national courts of the various Member States actually make use of the possibility of making a reference to the Court of Justice for a preliminary ruling’, which may lead to discriminatory situations between nationals of the various Member States. According to the applicant, it can be considered that there is no genuine judicial review of acts adopted by the EPPO during criminal proceedings brought by the European Delegated Prosecutors in Romania.
22 The applicant submits that Article 42(1) of Regulation 2017/1939 ‘unduly divides the jurisdiction’ of the Court of Justice of the European Union. That court has pointed out that ‘judicial review in the Member States must be carried out in accordance with EU law and that [its jurisdiction] cannot be circumvented or excluded by rules of secondary legislation’. In addition, according to the applicant, having recourse exclusively to national courts to obtain the judicial protection of EU law may lead to inconsistent interpretations and undermine the harmonised principles of the EU legal framework. In his view, removing acts of the EPPO from the jurisdiction of the Courts of the European Union is tantamount to depriving him of the remedy to which he is entitled under Article 47 of the Charter.
23 In the second place, the applicant argues that the reference made, in Article 86(2) TFEU, to the bringing of criminal proceedings before national courts is an exception enjoyed by the EPPO, which concerns only the ‘trial’ stage but which cannot be interpreted broadly and cannot be seen as having a scope which is such as to preclude the specific jurisdiction conferred on the Courts of the European Union. The applicant adds that it is apparent from a literal and teleological interpretation of Article 86(3) TFEU that that provision does not expressly provide for the possibility of derogating from the jurisdiction of the Court of Justice of the European Union in relation to the judicial review of acts established by the EPPO; nor does it implicitly provide for the possibility of restricting that jurisdiction. In his view, Article 42 of Regulation 2017/1939 must be interpreted in connection and in conjunction with the other EU judicial rules and principles that take into account the right to an effective remedy and to a fair trial.
24 In the third place, the applicant submits that the conditions for admissibility of an action for annulment, laid down in the fourth paragraph of Article 263 TFEU, are satisfied in the present case. First, the contested decision, by its very nature, has a direct effect on the applicant’s legal situation, secondly, that decision is of direct concern to the applicant and actually affects his legal situation, thirdly, the applicant has a legitimate interest in having that decision annulled and, fourthly, the two-month time limit for bringing the action against the contested decision has been observed.
25 As a preliminary point, it should be borne in mind that the mechanism provided for by the legislature to ensure the review of procedural acts of the EPPO is a sui generis mechanism (see, by analogy, orders of 13 June 2022, Mendes de Almeida v Council, T‑334/21, EU:T:2022:375, paragraph 40, and of 25 October 2022, WO v EPPO, T‑603/21, not published, EU:T:2022:683, paragraph 36). According to recital 88 of Regulation 2017/1939, that mechanism is intended to ensure effective remedies, in accordance with the second subparagraph of Article 19(1) TEU.
26 Provision is made for the judicial review of procedural acts of the EPPO in Article 42 of Regulation 2017/1939. More specifically, paragraph 1 of that article provides, inter alia, 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. Paragraph 2 of that article states that the Court of Justice has jurisdiction, in accordance with Article 267 TFEU, to give preliminary rulings 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, concerning the interpretation or validity of provisions of EU law, including Regulation 2017/1939, and 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.
27 Article 42 of Regulation 2017/1939 expressly provides for the jurisdiction of the EU judicature, under Article 263 TFEU, only in respect of (i) decisions of the EPPO to dismiss a case, in so far as they are contested directly on the basis of EU law, (ii) decisions of the EPPO which affect the data subjects’ rights under Chapter VIII of Regulation 2017/1939, (iii) decisions of the EPPO which are not procedural acts, such as decisions concerning the right of public access to documents, (iv) decisions dismissing European Delegated Prosecutors adopted pursuant to Article 17(3) of that regulation, or (v) any other administrative decisions.
28 In the present case, it should be noted that the contested decision, so far as the applicant is concerned, constitutes a procedural act of the EPPO which is not one of the decisions referred to in Article 42(3) and (8) of Regulation 2017/1939. By contrast, the part of the contested decision relating to acts of corruption and forgery which dismisses the case does not concern the applicant.
29 The applicant considers that the Court should declare that it has jurisdiction, on the basis of an interpretation of Article 42 of Regulation 2017/1939, so as (i) to meet the requirements, in particular, of the right to an effective remedy and to a fair trial, and (ii) not to invalidate the jurisdiction of the Court of Justice of the European Union to ensure that the law is observed in the interpretation and application of the Treaties and the autonomy of the EU legal system is respected.
30 Regarding the interpretation of Article 42 of Regulation 2017/1939, it should be borne in mind that, according to settled case-law, 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 (see, by analogy, judgments of 19 September 2019, Rayonna prokuratura Lom, C‑467/18, EU:C:2019:765, paragraph 61, and of 5 October 2020, Brown v Commission, T‑18/19, EU:T:2020:465, paragraph 111).
31 As regards Article 42(1) and (2) of Regulation 2017/1939, it cannot be disputed that the wording of those provisions is in no way ambiguous inasmuch as they confer on national courts exclusive jurisdiction to hear and determine procedural acts of the EPPO that are intended to produce legal effects vis-à-vis third parties, apart from the exceptions laid down in Article 42(3) and from the fate of certain decisions of the EPPO referred to in paragraph 8 of that article, and that 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 Regulation 2017/1939.
32 By requesting that the Court annul the contested decision and, consequently, declare that it has jurisdiction, on the basis of an interpretation of Article 42 of Regulation 2017/1939 in the light of the right to an effective remedy, the applicant is proposing an interpretation that is contra legem, which cannot therefore be accepted.
33 In that context, it must be stated that, assuming that the applicant does not confine himself to requesting a broad interpretation of Article 42 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 that article in the light of Article 19 TEU, it should be noted that, on account of the Court’s lack of jurisdiction to hear and determine the main action, such a challenge cannot be accepted.
34 In general, as regards the requirements of effective judicial protection, it is useful to mention 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, as confirmed by Article 42(2) of that regulation.
35 In the present case, it should be noted that 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. 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.
36 In the light of the foregoing, the first objection of inadmissibility raised by the EPPO must be upheld and, consequently, the plea of inadmissibility raised by that body must also be upheld and, therefore, the present action must be dismissed on the ground that the Court lacks jurisdiction to hear and determine it, without there being any need to rule on the heads of claim relating to the provisions of the internal rules of procedure of the EPPO, which concern the substance of the dispute.
37 In accordance with Article 144(3) of the Rules of Procedure, where the defendant has lodged a plea of inadmissibility or of lack of competence as provided for in Article 130(1) of those rules, a decision on the application to intervene is not to be given until after the plea has been rejected or the decision on the plea reserved. Furthermore, under Article 142(2) of those rules, the intervention is to become devoid of purpose, inter alia, where the application is declared inadmissible. In the present case, since the action has been dismissed in its entirety on the ground that the Court lacks competence, there is no need to adjudicate on the applications to intervene submitted by the Council of the European Union, the European Commission and the European Parliament.
Costs
38 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to bear his own costs and to pay those incurred by the EPPO, in accordance with the form of order sought by the latter, with the exception of those relating to the applications to intervene.
39 Under Article 144(10) of the Rules of Procedure, if the proceedings in the main case are concluded before an application to intervene has been decided upon, the applicant for leave to intervene and the main parties are each to bear their own costs relating to the application to intervene. Consequently, the applicant, the EPPO, the Council, the Commission and the Parliament are each to bear their own costs relating to the applications to intervene.
On those grounds,
THE GENERAL COURT (Tenth Chamber)
hereby orders:
1. The action is dismissed.
2. There is no need to adjudicate on the applications to intervene submitted by the Council of the European Union, the European Commission and the European Parliament.
3. Mr Victor-Constantin Stan shall bear his own costs and those incurred by the European Public Prosecutor’s Office (EPPO), with the exception of those relating to the applications to intervene.
4. Mr Stan, the EPPO, the Council, the Commission and the Parliament shall each bear their own costs relating to the applications to intervene.
Luxembourg, 15 December 2023.