Request for a preliminary ruling from the Juzgado Central de Instrucción No 6 de la Audiencia Nacional (Spain) lodged on 3 May 2023 – European Public Prosecutor’s Office v I.R.O., F.J.L.R

(Case C-292/23)

Language of the case: Spanish

Referring court

Juzgado Central de Instrucción No 6 de la Audiencia Nacional

Parties to the main proceedings

Applicant: European Public Prosecutor’s Office

Defendants: I.R.O. and F.J.L.R

Questions referred

Is Article 42(1) of Regulation 2017/1939 ¹ to be interpreted as precluding a national provision, like Article 90 of L[ey]O[rgánica] (Framework Law) 9/2021 of 1 July 2021, which excludes from judicial review a procedural act of the European Public Prosecutor’s Office which produces legal effects vis-à-vis third parties (in the sense described), such as the decision of the European Delegated Prosecutor to summon witnesses in the Decree of 2 February 2023?

Are Articles 6 and 48 of the Charter of Fundamental Rights of the EU and Article 7 of Directive (EU) 2016/343 ¹ to be interpreted as precluding a national provision, like Article 90, in conjunction with Articles 42(1) and (3) and 43, of LO 9/2021 of 1 July 2021, which excludes from judicial review a procedural act of the European Public Prosecutor’s Office such as the decision of the European Delegated Prosecutor to summon as a witness a third party in respect of whom a reasonable expectation of involvement in the offences under investigation has been identified?

Are the second subparagraph of Article 19(1) TEU and Article 86(3) TFEU to be interpreted as precluding a system of judicial review, of the kind laid down in Articles 90 and 91 of LO 9/2021 in relation to acts of European Delegated Prosecutors adopted under Articles 42(1) and 43 of LO 9/2021, which excludes from judicial review a measure adopted by the European Delegated Prosecutor in the exercise of his or her investigative powers and which has no equivalent in the national procedural provisions governing the right to contest decisions adopted by investigating judges in the exercise of their investigative powers?

Is Article 2 of the TEU, which enshrines the values inherent in the rule of law on which the Union is founded, in conjunction with the right to an effective remedy and the right to a fair trial laid down in Article 47 of the Charter of Fundamental Rights of the EU and the principle of effectiveness laid down in the second subparagraph of Article 19(1) of the TEU, to be interpreted as precluding a system of judicial review of acts of European Delegated Prosecutors which limits the situations in which there is a right to contest decisions to a closed number of situations such as that provided for in Spanish law in Articles 90 and 91 of LO 9/2021?

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¹ Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor's Office (OJ 2017 L 283, p.1).

¹ Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ 2016, L 65, p. 1).