In memory of my beloved mother and her Sense and Sensibility.
I. Introduction
It is a truth universally acknowledged, that a single European office in possession of vast criminal powers, must be in want of common standards for its investigations. Footnote 1
As some readers may have recognised, the title of this piece was inspired by Jane Austen’s debut novel, while the first statement reimagines the classic opening line of another of her fine works. The main ambition of Mrs Bennet in Pride and Prejudice is to marry off her daughters at any cost, regardless of whether this will make them happy, while the decisions of Mrs Dashwood in Sense and Sensibility often seem to ignore logic or reason.
The primary ambition of the European Public Prosecutor’s Office (EPPO), the main protagonist of this article, is to prosecute crimes against the financial interests of the Union. Whether or not this makes defendants happy is rather marginal. However, whether this is done at any cost, or if they are subjected to comparable and fair proceedings based on solid evidence and reason, is of vital importance.
And this lies at the heart of the present article, which focuses on two main themes reflected in the title. ‘Sense’ refers to the coherence—or otherwise—of the EPPO’s cross-border investigations. This is examined both in its own right and in comparison with other EU instruments used in this area, namely the European Investigation Order (EIO) and Joint Investigation Teams (JITs). ‘Admissibility’, meanwhile, should not imply that the article establishes principles for accepting or rejecting EPPO evidence in court, as would be expected in a traditional context. Rather, it considers ways to improve the current legal framework with a view to optimising the legitimacy of evidence gathered within.
A thorough examination is pertinent given the concerns raised from the outset about a single European office applying different national standards within a cooperation framework that seeks to move away from mutual recognition. It is also timely given that the Commission is currently evaluating the EPPO Regulation, scheduled for completion in 2026.
In the first part, the article looks at how differences in national evidence laws affect judicial cooperation in intergovernmental and EU settings. It then establishes a link between these two areas by outlining and contextualising the foundations for the EPPO’s cross-border investigations in key documents that led to the establishment of the Office. The objective is not to chronicle legal history but to facilitate a re-evaluation of earlier concepts in the context of the current evaluation cycle. Particular emphasis is placed on comparing pivotal factors of evidence-gathering and thus admissibility, including the available investigative powers and procedural safeguards, the rights of the defence, cooperation design, and the admissibility rules. The analysis will demonstrate that the present design of the Office enables autonomous EU decisions to prosecute budgetary fraud, producing tangible results. However, in the absence of coherent strategies for addressing legal diversity, the framework for gathering evidence across borders appears to be less stable than that provided by EIOs and JITs.
The second part considers the broader implications of the judgments of the Court of Justice of the European Union (CJEU) in the G. K. and Others and the Gavanozov cases for the gathering of evidence across borders under Union law. It also expresses concern about the Court’s proactive approach to transferring the resolution of ambiguities and gaps in EU legislation to the national level.
The third and final section sets out two detailed courses of action to address the issues that have been identified. These aim to enhance legal certainty by optimising the use of existing EU competencies rather than augmenting them. The first proposal—drawing on a 2012 study that retains partial relevance—suggests delineating some of the EPPO’s investigative powers more precisely within its legal remit. The second proposal recommends that, in the absence of more common standards or enhanced harmonisation in the future, the EPPO should utilise EIOs and JITs for cross-border investigations.
II. Legal diversity and admissibility of evidence
The effectiveness, fairness, and humanity of criminal justice systems can vary considerably. Over the years, key differences and their profound impact on judicial cooperation have been highlighted in various studies.Footnote 2 The law of evidence is one such area of substantial divergence, including the investigative measures that can be used and the procedural safeguards that must be followed.Footnote 3 This extends beyond coercive measures or fundamental rights, in cases involving surveillance, interception of telecommunications, and searches of premises.Footnote 4 Disparities surrounding the necessity of legal representation during the examination of witnesses in the pre-trial phase, or the time and manner of notification on procedural rights, may also have implications in the cross-border context. Similarly, difficulties may arise when national laws offer comparable safeguards but employ different criteria, for example when a vehicle wiretapped in a Member State where subsequent judicial authorisation is sufficient enters another where prior authorisation would have been necessary.Footnote 5 This is particularly pertinent given that the principles that determine what evidence is admissible in court can also vary between jurisdictions.Footnote 6
Despite legal diversity, law enforcement is keen to utilise as much evidence as possible in cross-border cases as well. The defence, on the other hand, seeks fairness and legal certainty, given that evidence may be gathered in various jurisdictions according to different rules and standards. Consequently, and at the risk of oversimplifying matters, traditionally, the two main challenges in judicial cooperation were obtaining relevant evidence from foreign jurisdictions and enabling trial courts to use it. These challenges had an impact not only on the efficacy of judicial cooperation but also on its modalities. The Council of Europe’s framework of mutual legal assistance, for instance, addresses legal diversity through various cumbersome control mechanisms, which can delay or hinder effective investigations.Footnote 7 By contrast, while respecting the diversity of legal traditions, judicial cooperation in EU law is founded on the principle of mutual recognition (Art. 82 Treaty on the Functioning of the European Union (TFEU)). This is based on the trust that national judicial decisions are equivalent despite underlying systemic differences.
However, two further issues emerge under Union law. Firstly, when evidence is gathered through EU measures in the area of freedom, security, and justice, the process and results must be not only effective but, to a certain extent, also comparable and consistent. Consequently, Article 82(2) TFEU recognises distinct areas of law, including the mutual admissibility of evidence, where establishing minimum rules through directives could foster mutual trust in the cross-border context. Secondly, while in cross-border EPPO investigations the legally diverse playground remains largely the same, as under the principles of mutual recognition and mutual legal assistance, the players have changed. Managing cooperation within this scheme is now the responsibility of European actors, rather than that of national authorities. Article 86(3) TFEU therefore enables the creation of directly applicable, common standards for the Office’s activities, for the admissibility of evidence, and for judicial review. If used sensibly, this power has the potential to resolve certain issues relating to legal diversity in the areas of evidence and judicial cooperation by introducing European rules.
Accordingly, under EU law, the collection of cross-border evidence falls under two schemes, which in turn adopt three different approaches to admissibility. One scheme fosters trust, either in its own right or through minimal harmonisation, to facilitate the Union-wide validity and enforcement of national decisions, as well as the admissibility of evidence collected in this way. The other enables standardisation to facilitate the Union-wide validity and enforcement of European decisions, as well as the admissibility of evidence collected. The scope of such legislation—whether focusing broadly on common standards for evidence collection or more narrowly on clarifying the grounds for inadmissibility—has been the subject of considerable dispute.Footnote 8 It is the former aspect that the present article will mainly be concerned with and the subsequent discussion will analyse whether and how this is reflected in the EPPO framework.
III. Evidence in cross-border EPPO investigations
The EPPO commenced its operations in 2021. It is the first EU body granted the authority to initiate criminal investigations and prosecutions in Member States relating to crimes affecting the financial interests of the Union (PIF crimes), in both domestic and cross-border contexts.Footnote 9
One of the main reasons for its establishment was the reluctance of Member States to investigate relevant offences. This was partly owing to a lack of political will but was also the result of the complex nature of such cases, which often involve multiple jurisdictions. The underlying idea was that given the pan-European nature of the concern and the heterogeneity of the national criminal justice systems, a European, rather than an intergovernmental, approach might more effectively facilitate investigations.
The following sections delineate the conceptual framework set out in key documents that underpin the establishment of the EPPO, particularly with regard to the applicable investigative measures and procedural safeguards when collecting evidence, the design of cross-border cooperation, and the admissibility rules. The focus will be on key documents that have introduced or removed significant concepts, thereby exerting a notable influence on the current design of the EPPO.
A. The Corpus Juris study
1. The European Public Prosecutor: the last among equals
The idea of a European Public Prosecutor (EPP) was first introduced in 1997 in the academic study commonly known as the Corpus Juris.Footnote 10 Various aspects of the concept and how it was subsequently watered down have been discussed in previous volumes of this yearbook, as well as in numerous further academic contributions.Footnote 11 Therefore, the focus here will be on the novel approach adopted by the study, which sought to standardise transnational criminal investigations and evidence—at least in theory.
The legal foundation for this concept involved a radical departure from mutual legal assistance between governments, towards the establishment of a single legal area in the EU. Accordingly, under the principle of European territoriality (Art. 18), budget fraud would have been investigated based on common definitions and principles, as well as standardised procedures, including defence rights, irrespective of the Member States in which the offence was committed, investigated, prosecuted, or adjudicated.
To ensure the consistent application of these rules, the study recommended establishing a central authority: the EPP headed by a director and deputies at the European level and supported by European delegated public prosecutors (EDelPPs) at the national level. Thus, the EPP was merely one of three constituent elements in a more extensive concept, the last among equals.
2. Investigative powers and judicial control
The study established a set of standardised powers for the EPP and a fairly uniform and independent control over their application. The measures could have been taken directly by the director or assigned to the EDelPPs. They included the collection of documents, requesting a judge to order an expert enquiry, carrying out searches and seizures, telephone tapping (authorised in advance or subsequently), and making requests for a person to be remanded in custody or granted bail (Art. 20).
In the absence of a European criminal court, the primary responsibility for judicial control would have rested with independent and impartial ‘judges of freedoms’, who would have been appointed by each Member State from the court in which the EDelPP was based. The judges would have applied the European rules, invoking national law only in the event of systemic gaps (Art. 35). They were to review the necessity, proportionality, and lawfulness of any measure that restricted rights and fundamental freedoms recognised by the European Convention on Human Rights (ECHR) (Art. 25).Footnote 12 Once judicial authorisation had been granted, the measures would have been enforceable throughout the Union.
3. Defence rights and admissibility of evidence
The uniform approach to collecting evidence and judicial control would have already fostered consistency and efficiency in cross-border investigations, including a more comparable legal standing for the accused—at least in PIF investigations. Nevertheless, given that they were often likely to be tried in a country other than their own, the Corpus sought to harmonise their rights (Art. 29(3)). In contrast to human rights conventions, the idea was that the Corpus would result in stricter enforcement if implemented. Most of these rights have since been enshrined in EU directives,Footnote 13 which, however, must be incorporated into national legislation. Despite the gradual reduction of national disparities in this domain, some Member States remain subject to infringement proceedings owing to their failure to fully implement some of the Directives.Footnote 14
Additionally, the authors argued that, given the marked disparity of rules of evidence permitted within each system, mere reference to national laws may well lead to considerable discrepancies and even impunity for criminals if evidence was not accepted in court.Footnote 15 Consequently, two primary lines of action were proposed. Firstly, in an attempt to reconcile the inquisitorial and accusatorial legal traditions, Article 32 set out specific procedures aimed at reducing problematic differences relating to witness testimony from another member state (via an audiovisual link), questioning and statements by the accused (in the form of a European interrogation report), or the production of documents (by an official accountant). Secondly, following the EPP’s decision to take the case to court, the judge of freedoms would have excluded any evidence gathered in violation of the ECHR, the Corpus, and domestic standards, as well as the case law of the European Court of Human Rights (ECtHR) and the CJEU (Art. 33). The Corpus did not preclude the validity of other forms of evidence deemed admissible under the national law of the state where the case was being adjudicated.
Over time, many of the concepts contained within the Corpus have been realised, including the EPPO and the union-wide validity and enforcement of judicial decisions in criminal matters. However, a fundamental distinction exists between the concepts in the study and their manifestations, which mirror opposite ends of the ‘trust’ spectrum in real life. The Corpus sought to foster mutual trust between national authorities by promoting uniformity in procedures. In contrast, subsequent Union instruments rely on mutual trust owing to remaining legal diversity.
B. The Corpus Juris 2000 and the Green Paper of the Commission: uniform mandate without uniform powers
The Corpus study provoked some strong reactions as Member States were less than enthusiastic about granting the EU such extensive powers in criminal matters.Footnote 16 Therefore, a follow-up study investigated the compatibility of the Corpus with national legislation and the potential difficulties of implementation.Footnote 17 While the fundamental concepts of European territoriality and the judge of freedoms were maintained, the drafting of a European criminal procedure was deemed unnecessary, with partial harmonisation being proposed instead.Footnote 18 This meant that the EPP would be deprived of uniform powers, signifying the first step in establishing a hybrid regime for prosecuting PIF crimes.
The authors of the study posited that national laws had evolved to encompass a broader range of admissible evidence, thereby becoming more compatible.Footnote 19 The revised text therefore only encompassed exclusionary rules for evidence obtained in violation of ECHR and ECtHR case law if this would jeopardise the fairness of the proceedings (Art. 33).
With a view to deepening the debate, the Commission issued a Green Paper in 2001 that also advocated minimal harmonisation.Footnote 20 Therefore, even if the paper recommended that the EPP be granted access, ‘where necessary to the entire range of investigation measures available in the national system to combat this form of financial crime’,Footnote 21 the existence, content, and criteria of such measures were contingent upon national legislation. This could have resulted in a disparity in the extent of EPP powers, ranging from overly extensive to overly narrow. The paper’s stance was in favour of the mutual admissibility of evidence in the EU, as proposed by the Tampere European Council.Footnote 22 Consequently, in the Corpus 2000 and in the Green Paper the fundamental objective of the EPP has undergone a shift in focus from addressing the fragmentation of legal systems through the implementation of a standardised procedure to addressing the fragmentation of national law enforcements by acting as a central manager.
C. The Treaty of Lisbon: a legal basis for the EPPO
The entry into force of the Treaty of Lisbon enabled deeper integration within the domain of criminal justice, which also resulted in the establishment of new Union competences and a legal basis under Article 86 TFEU for the creation of the EPPO.Footnote 23 This settled with a hybrid legal procedure for the Office, whereby common European rules may be applied exclusively to the pre-trial phase but national laws govern the trial proceedings. As the scope of harmonisation in the pre-trial phase was left entirely open, the following conclusions can be drawn also in light of the current evaluation cycle. Firstly, in principle, the Treaty permits the complete harmonisation of the pre-trial stage. Secondly, a limited harmonisation of this stage tends to create greater complexity, as it necessitates increased reliance on national laws during this phase too. Thirdly, minimum harmonisation would require Member States to continue relying on the principle of mutual recognition in cross-border EPPO investigations owing to legal diversity.
D. The Commission proposal: no uniform powers, no uniform mandate
1. Investigative powers, defence rights, and judicial control
In 2013 the Commission put forward a proposal for a Regulation on the EPPO.Footnote 24 The Office’s competence was defined in relation to the future PIF Directive. After the Corpus Juris 2000 deprived the EPP of uniform powers, this signified the loss of a uniform mandate as well.
The structure was much like the one advocated by the Corpus Juris, namely, a European unit consisting of the EPP and its deputies with the central decisions being enforced by European Delegated Prosecutors (EDPs) at the national level. The proposal envisaged a ‘coherent’ European system for the investigation and prosecution of budgetary fraud (Preamble 3.3) and a European office that would act upon common European interests in a ‘single legal area’ (Art. 25); it also identified the need for the EPPO to have ‘comprehensive’ investigative powers (Recital 28).
Depending on one’s combined interpretation of coherence, comprehensiveness, and a single legal area, these objectives should, in principle, have resulted in extensive harmonisation. The proposal did indeed set out a catalogue of investigative measures that should be available in all Member States, differentiated according to the necessity of judicial authorisation. Nevertheless, national legislation was to determine the detailed rules once again, including the implementation of coercive measures (Art. 26).
Within this context, the Proposal set out specific rights for the defence (Arts. 32 and 34) and referred to the Charter of Fundamental Rights of the European Union (‘the Charter’) and to directives on defence rights under Article 82 TFEU. It is important to recognise, however, that the provisions set out in the Charter and the defence rights directives establish only minimum standards. As previously mentioned, infringement proceedings are ongoing against various Member States owing to their failure to implement even some of these adequately to the present day. Thus, the proposal had the potential to result in the use of excessively high or low levels of protection. This could have posed considerable challenges to the defence and potentially undermined the legitimacy of the prosecution.Footnote 25
The proposal considered the EPPO to be a national authority for the purposes of judicial review, given that its investigations would be carried out according to national rules and authorised by national courts.Footnote 26 It is true that, according to the Corpus Juris, the judges of freedom responsible for monitoring the activities of the EPP—a European authority—were to be drawn from the national legal system. However, their competence was not owing to the national character of the EPP’s actions but because the collection and admissibility of evidence was subject to a set of common European rules in all Member States.
2. Cross-border investigations and the meaning of ‘joint teams’
The Treaty of Lisbon established a range of provisions, including enhanced cooperation, the subsidiarity control mechanism, and the emergency brakes, designed to ensure respect for, and protection of, the diversity of legal traditions.Footnote 27 Consequently, judicial cooperation within the EU is now primarily based on mutual trust in this diversity, exercised through the horizontal cooperation of national authorities. Although the proposal upheld legal diversity, it sought to transfer the management of cross-border investigations from national authorities to a European body through vertical cooperation. Therefore, it would have been reasonable to expect a comprehensive concept to be formulated for this new approach to judicial cooperation in criminal matters, rather than a single provision encouraging the respective EDPs to engage in ‘close consultation’ with one another (Art. 18(2)).
There was, however, a noteworthy idea: the possibility of the EPP setting up ‘joint teams’ consisting of several EDPs to participate in the investigation. Any of these EDPs could have been assigned the task of gathering relevant information or carrying out specific investigative measures (Art. 18(3)). If these were regarded as a novel iteration of JITs, which are a popular collaboration tool among practitioners, this would have been a reasonable choice.Footnote 28 Joint Investigation Teams are set up by agreement between the competent authorities of two or more Member States for a specific purpose and a limited period. They essentially establish trust through direct participation in investigations carried out in a foreign jurisdiction, with the information obtained primarily used for the purpose for which the team was set up.Footnote 29 That said, this idea was not elaborated on further in the text.
3. Union-wide admissibility of evidence
The proposal stipulated that EPPO evidence should be admitted in trials without any validation, even if the national legislation in question provides for different rules (Art. 30). However, such an EU-wide admissibility rule was unfounded, as the mere fact that evidence was gathered by a European authority would not automatically lead to a balance of differences or increase trust between national criminal justice systems. For such an approach to be justified, it would need to be grounded in a more standardised procedure, such as that set out in the Corpus, or on the concept of direct cooperation through ‘joint teams’, the idea which has not been further developed by the Commission. As mentioned earlier under Article 86 TFEU, it is precisely within the pre-trial phase that European rules regarding the Office’s investigation could have been devised with a view to facilitating such an admissibility rule.
So, was this the coherent European system envisaged in the preamble to the proposal? Certainly not. From a criminal law perspective, the question of whether equal emphasis is placed on increasing efficiency and ensuring fairness has become ever more pressing.Footnote 30
IV. The European Investigation Order
Since 2017, the EIO, which was adopted following the Commission proposal and before the Council Regulation on the EPPO, has been the primary means of obtaining evidence in another Member State that is bound by the measure.Footnote 31 In order to understand the issues concerning the EPPO’s cross-border investigations, as set out in the Regulation, it is first necessary to summarise how the EIO works.
In the context of legal diversity, the EIO, a judicial decision issued or validated by a judicial authority, was predicated on the principle of mutual recognition. The scope of the Directive encompasses all investigative measures with the exception of JITs. As a main rule, the measures are carried out in accordance with the law of the executing authority and within strict deadlines.Footnote 32
In line with Article 82(2) TFEU, the Directive could have incorporated minimum rules to facilitate admissibility; however, it merely contains ‘specific provisions’ for ‘certain investigative measures’ (Arts. 22–28). Rather than by approximation on paper, it addresses legal diversity in practice. In order to avoid forum shopping, the directive applies a test to ensure that the measures are applicable under the laws of both Member States concerned. It also includes proportionality tests, which allow the executing state, among other things, to resort to alternative measures (Arts. 6 and 10).
Compared to other mutual recognition measures, most notably the European Arrest Warrant (EAW),Footnote 33 the Directive incorporates a broader range of grounds for refusing recognition or execution of an EIO. This explicitly includes cases where there are substantial grounds to believe that it would be incompatible with the executing state’s obligations to protect fundamental rights (Art. 11(1)). That said, it also provides for a consultation scheme to resolve issues of this kind (Art. 11(4)).
This signifies a deviation from earlier mutual recognition practices, in that it limits the near-automatic legal effect of foreign judicial decisions. Although the issuing authority is responsible for justifying the EIO and related measures, the executing authority also reviews this to a certain extent when deciding on proportionality and potential violations of fundamental rights.Footnote 34 In other words, it reflects reality as, in a diverse legal environment and in the absence of comprehensive minimum rules in the field, mutual trust cannot be taken for granted. The tests and safeguards introduced in the Directive allow for a more thorough check on the comparability of national evidence laws and their respect for fundamental rights, thus strengthening the position of the defendant. In the long term, this could increase trust in foreign jurisdictions despite their differences and consequently serve cross-border investigations.
However, the Directive currently lacks the coherent approach expected of a measure with a Union-wide effect. This is because it only addresses specific issues relating to the involved jurisdictions on a case-by-case basis. There are also calls for changes to clarify the scope and meaning of certain measures, and to address overlaps with other instruments for judicial cooperation.Footnote 35
V. The EPPO regulation: neither fish nor fowl
A. Design and powers of the Office
The Regulation on the EPPOFootnote 36 was ultimately adopted and came into effect in 2017 as an exercise in enhanced cooperation. The Office commenced operations in 2021 and currently has 24 participating Member States.Footnote 37 The following outlines those salient features that are essential for understanding its cross-border investigations.Footnote 38
Currently, the Office’s material competence is primarily limited to offences under the PIF Directive (Art. 22), meaning that it lacks a uniform mandate. If the Directive is not transposed correctly—as is the case with some Member States—or if a national criminal code is amended, for example by reducing penalties and thereby shortening the statute of limitations, in some cases this could prevent the EPPO from conducting investigations until the conditions for compliance with the Directive are met again.Footnote 39
The EPPO has a design that is elaborate and complicated. At the central level, there is one European Prosecutor per participating Member State. Together, they form the College, led by the European Chief Prosecutor, taking administrative and strategic decisions with the aim of ensuring a consistent prosecution policy. European Prosecutors also establish smaller Permanent Chambers with the power to make operational decisions, including whether to dismiss a case or send it to trial. In the Member States, European Delegated Prosecutors (EDPs) conduct the actual investigations and prosecutions.
The Regulation sets out a number of investigative measures that must be available to the EPPO in all participating Member States, but these measures are not defined uniformly.Footnote 40 To ensure the effective integration of European and national legal frameworks, the EDPs are also granted the same authorities as their national counterparts (Art. 30).
However, there are various restrictions to consider. Firstly, in relation to the PIF Directive, the EDPs are only entitled to order or request these measures where the offence is punishable by a maximum penalty of at least four years of imprisonment in their respective Member State (Art. 30(1)). Secondly, all the measures may be subject to specific restrictions regarding confidentiality (Art. 30(2)) and half of the listed measures may be subject to additional restrictions under national law (Art. 30(1)(c), (e), and (f)). Thirdly, the measures are also subject to proportionality considerations according to the respective national laws.
In sum, the prevalence of legal diversity in this domain remains unabated. Absent a common mandate and powers, the ‘single office’ (Art. 8) possesses no single legal area for its operations when bringing together all relevant evidence of a case across Member States.Footnote 41 Not providing for minimum standards for the gathering of evidence was a missed opportunity to facilitate their admissibility and so the fairness and effectiveness of EPPO proceedings. Whilst this approach may still produce practical results, greater consistency is anticipated from a European authority operating within the remit of Union law and in the sensitive field of criminal law.
B. Cross-border investigation scheme: same, same but different
It is hard to ensure the coherence of cross-border investigations when a single office in theory operates with so many variables in reality. As previously mentioned, the legal playground remains as diverse under the EPPO as it is for gathering cross-border evidence through EIOs, JITs, and mutual legal assistance. However, the player has become a European one. During the course of the negotiations in the Council, various Member States advocated for an approach grounded in the principle of mutual recognition, while others called for a sui generis scheme.Footnote 42 The result is a distinctive configuration that combines elements of both horizontal and vertical cooperation. This creates legal uncertainty.
In cross-border investigations between its members, the EPPO does not apply the EIO Directive. Instead, the delegated prosecutors, referred to as handling and assisting EDPs in such cases, shall act in ‘close cooperation’ by assisting and regularly consulting each other. The handling EDP may ‘assign’ any measures under their national law to their counterparts in other Member States (Art. 31). In line with the single office concept, the Regulation provides only one ground for the withdrawal of the assigned measure if it has not been authorised by the assisting authority, and no grounds for refusal. By contrast, the EIO Directive establishes a series of grounds—including fundamental rights considerations—that may result in the refusal of recognition or execution of a measure. This leads to another difference between the two schemes. Whereas the EIO Directive stipulates that judicial authorisation for a measure is to be granted in the issuing state, with additional considerations in the executing state, the EPPO Regulation distinguishes between different situations. In short, depending on which national law requires judicial authorisation in a given case, Article 31(3) implies that this may be granted by either the handling or the assisting authorities involved. The Regulation is, however, silent with regard to matters of jurisdiction and the scope of the authorisation in cases where both procedures necessitate judicial authorisation. Recital 72 merely states that, in any case, only one authorisation may be sought. This issue is also addressed in the CJEU’s preliminary ruling on the EPPO in the case of G. K. and Others, which will be examined in the following section.
The EPPO scheme provides greater oversight than the EIO because it ensures that any relevant national laws requiring judicial authorisation for a measure are not ignored or circumvented. At the same time, it appears to be less efficient in cases where judicial authorisation is required only by the law of the assisting Member State. If authorisation is not granted on the basis of fundamental rights issues, the prosecutor handling the case must ‘withdraw’ the measure. This could prevent them from obtaining evidence that might have been obtained in a comparable case through the consultation system offered by the EIO Directive. Even though the concept of close cooperation in the EPPO Regulation requires regular consultations between the delegated prosecutors, neither the Regulation nor the guidelines of the EPPO College on close cooperationFootnote 43 address the issue of fundamental rights in this regard. In contrast, this is explicitly stipulated in the EIO Directive.
The EPPO, a ‘single office’, is a vertical approach to judicial cooperation in criminal matters, driven by a different philosophy than mutual recognition. Consequently, the decision to deviate from the EIO Directive, which facilitates an extensive scope for refusal of cooperation, is understandable. Nevertheless, the arguments for this approach and the resulting scheme are incoherent. First, as has been emphasised, the Regulation has failed to address the issue of legal diversity in this area. Consequently, the Union’s tried-and-‘trusted’ approach to judicial cooperation amid these differences is mutual recognition and its balancing mechanisms, which have been demonstrated to be both effective and mostly reliable. Secondly, the arrangements clearly resemble the mutual recognition model and hence the EIO in various respects, notably that the measures are primarily carried out according to the law of the assisting authority and that there is a possibility of resorting to alternative measures based on a proportionality test.Footnote 44 In the absence of common rules, this was simply unavoidable.
C. Defence rights, admissibility of evidence, and judicial control
The variable powers are accompanied by a variety of procedural safeguards derived from different legal sources, with no indication as to how they should be applied in a transnational context. This can give rise to complications in cross-border EPPO proceedings when evidence is gathered against the same suspect in various Member States, or when the actions of multiple suspects located in different countries pertain to the same set of facts.Footnote 45 The sources include national legislation; minimum rights set out in the EU defence rights directives; as well as references to European standards in the case law of the CJEU and the ECtHR. Essentially, this means that the fairness of the trial cannot be compromised, thereby raising the same issues as those previously examined in relation to the Commission proposal.
The obligation in the latter to receive evidence without any validation was reworded so that trial courts shall ‘not deny’ evidence on the ‘mere ground’ that it was gathered in another Member State or in accordance with its law (Art. 37(1)). Although this means that evidence is not necessarily admissible, in the absence of a standardised procedure, it is being collected within a framework where the legal environment is still diverse yet offering fewer guarantees than those set out in the EIO Directive.Footnote 46
While the Regulation increases European control over decisions to dismiss a case, the EPPO is still considered to be a national authority with regard to the judicial review of its actions.Footnote 47 This seems to be inaccurate. Firstly, besides the fact that the very name of the EPPO indicates that it is a European office, the objective was to establish a European authority in response to the ‘fragmentation of national prosecutions’,Footnote 48 which the Regulation defines as ‘an indivisible Union body operating as one single Office’ (Art. 8). The decisions of this European office are of pivotal significance as they pertain to the initiation of criminal proceedings, investigations, and bringing charges in the Member States. Secondly, the Office retains oversight of cases until a final judgment is reached in the national courts. Thirdly, a significant proportion of cases involve multiple jurisdictions. Finally, according to the EPPO College’s own guidelines, the EDPs are not ‘authorities of different countries’ with regard to their cross-border cooperation.Footnote 49 How, then, could their actions be national? Unfortunately, in the absence of a European criminal court, this suggests that the EPPO is regarded as either a national or a European authority, depending on the most suitable approach in a given context.
Therefore, the judicial review would be better placed at Union level, as Article 263 TFEU stipulates that the CJEU shall review the legality of acts of Union bodies, offices, or agencies of the Union intended to produce legal effects vis-à-vis third parties.Footnote 50
VI. First CJEU rulings: the road to nowhere?
A. G. K. and Others (Parquet européen)
1. Facts of the case
As shown earlier, the EPPO’s unique approach to cross-border investigations is intricate and, to a certain extent, unpredictable. It was therefore anticipated that the first case concerning the EPPO to be adjudicated by the CJEU would relate to this matter. More precisely, in the case of G. K. and Others (Parquet européen),Footnote 51 concerning subsequent judicial review of a measure, the CJEU also had to consider the extent to which prior judicial authorisation is required (or possible) in the assisting Member State, when the laws of both Member States stipulate it.
It is worthy of note that the large-scale tax fraud case in question involved Member States that favoured basing the cross-border investigations of the Office on the principle of mutual recognition during the drafting of the EPPO Regulation. A German EDP assigned the task of conducting searches and seizures to its Austrian counterpart. A local court in Munich authorised the measures in Germany, without any consideration having been given to the justification for the searches of the business premises and the homes in Austria (32, 37). The Austrian authorisation concerned only the formalities related to implementation of the measures.
The applicants challenged the decision before the Oberlandesgericht Wien (Higher Regional Court of Vienna), inter alia, on the grounds of necessity and proportionality of the searches ordered (para. 31). Against this backdrop, the three questions raised by the Austrian court essentially concerned the extent of the prior judicial authorisation and the subsequent judicial review to be carried out in the state of the assisting EDP, taking into account the authorisation previously granted in the Member State of the handling EDP (paras. 36, 38). In other words, should the courts of the assisting state only examine questions of implementation or also issues of justification and necessity of the measure?
The Court acknowledged that Articles 31 and 32 of the EPPO Regulation, regarding the distinction between the adoption, justification, and enforcement of a measure, do reflect the logic of mutual trust and mutual recognition (para. 55). It then argued that it followed from the Regulation that the EU legislature intended to create a mechanism that ensures that cross-border investigations conducted by the EPPO are at least as efficient as those conducted under the principle of mutual recognition (para. 67). Accordingly, a double-check of the justification and adoption of the measure, in both Member States, would, in practice, lead to a less efficient system (para. 68). First, this would mean that the competent authority in the state of the assisting prosecutor would have to examine the entire case file in detail (para. 69). Second, since this examination is based on the law of the Member State of the handling EDP, authorities in the assisting Member State cannot be considered better placed for this purpose (para. 70). It then confirmed the distinction between the adoption and justification of the designated measure within the remit of the EDP handling the case, and the implementation of the measure within the remit of the assisting EDP (para. 71). This is referred to as a shared responsibility (para. 72). It further said that in accordance with Article 31(2) of the EPPO Regulation, it is for the Member State of the handling EDP to provide for a ‘prior judicial review’ of the conditions relating to the justification and adoption of an assigned investigation measure (para. 73). Additionally, that as regards investigation measures, which seriously interfere with fundamental rights, such as searches of private homes, it is for the Member State of the handling EDP to provide, in national law, for adequate and sufficient safeguards, such as a prior judicial review, in order to ensure the legality and necessity of such measures (para. 75). Finally, the operative part of the judgment stated that the justification and adoption of the measure ‘must’ be subject to ‘prior judicial review’ in the Member State of the handling EDP ‘in the event of serious interference with the rights of the person concerned guaranteed by the Charter of Fundamental Rights of the European Union’ (para. 79).
2. Evaluation of the ruling: shared responsibility for judicial authorisation—from allocation to availability
Essentially, the judgment lends further credence to the assertion that cross-border investigations conducted by the EPPO are predominantly underpinned by the mutual recognition approach, but without recourse to the various safeguards set out in the EIO Directive (para. 67). Consequently, if the legislator’s objective in relation to cross-border EPPO investigations was to attain ‘at least’ an equivalent level of efficiency to that achieved through mutual recognition, the EPPO could safely apply EIOs.
The rationale behind the non-application of the Directive and associated balancing mechanisms was rather driven by efforts to increase efficiency in cross-border EPPO investigations as well. This is also evident when considering that the EPPO College stated unequivocally and critically, with a discernible undertone, that EPPO investigations ‘cannot be more cumbersome, bureaucratic and time-consuming’ than EIOs.Footnote 52 While this is not a flattering description of the cornerstone of judicial cooperation within the EU, the Office’s initial results do demonstrate an increase in efficacy. However, in the context of legal diversity, this should not be achieved at the expense of legitimacy.Footnote 53 Therefore, the EPPO mechanism should ensure at least the same level of legal certainty as current EU cooperation mechanisms—a benchmark which, as evidenced, it demonstrably fails to meet at present.
The Court presumably adopted the ‘shared responsibility’ concept to comply with the Regulation’s single judicial authorisation rule in Recital 72 while also keeping pace with the EIO, which provides for judicial authorisation in the issuing state and some counterchecks in the executing state.
However, this could still imply dual ‘authorisation’ in practice: one for the content and justification of the measure and another for its execution. In fact, this would reflect the reality of cross-border cooperation. As with EIOs, a genuinely single judicial authorisation remains a pipe dream in practice and is also not desirable. In a legally diverse environment, the executing/assisting authority must consider or verify the substantive reasons for a measure in order to decide whether there are substantial grounds to believe that executing it would be incompatible with its obligations under the Charter, or whether a less intrusive measure could be used instead.Footnote 54 The EPPO, the Commission, and various governments also argued in favour of obtaining two authorisations in case the laws of both Member States require them.Footnote 55
Finally, the terminology and reasoning of paragraphs 73, 75, 78, and 79 are ambiguous. The main issues in the case arise in relation to prior judicial authorisation (ex ante) and subsequent judicial review (ex post) in situations where both Member States require judicial authorisation for a measure, as set out in the questions referred by the Austrian court and the terminology used in Article 31(3) of the EPPO Regulation. Therefore, it is misleading for the Court to start using the composite term ‘prior judicial review’ in the final part of the judgment, from paragraph 73 onwards. However, at this stage, the focus still appears to be on the original question of how tasks are divided between national authorities. This is underlined by the fact that paragraph 73 refers to Article 31(2) of the EPPO Regulation, which states that the justification and adoption of the measures ‘shall be governed by the law of the Member State of the handling European Delegated Prosecutor’.
However, in paragraph 75, the focus appears to shift from the division of tasks to the question of what safeguards should be available for specific measures under national law. The Court states that it is the responsibility of the handling Member State to provide adequate and sufficient safeguards in national law ‘such as’ a prior judicial review of measures, which seriously interfere with fundamental rights, ‘such as’ searches of private homes.
In the present case, the Member States involved had already provided for prior judicial authorisation of searches of private homes.Footnote 56 The issue was simply one of scope and allocation when it comes to judicial cooperation. This is because the German legislation implementing the EPPO Regulation stated that, in cross-border EPPO investigations, if the laws of both Germany and the assisting Member State require prior judicial authorisation for a measure, this shall be granted by a judge in the assisting Member State.Footnote 57 It could be hypothesised that the respective provision is the result of the German legislator taking the ‘single judicial authorisation’ concept in the Regulation seriously. Whether this is advantageous is another question. After all, if the trial had taken place in Germany, it could be more sensible for the German authorities to have granted judicial authorisation. That said, it would have been sufficient to draw attention to potential flaws in the German implementing law.
Although the phrase ‘such as’ suggests that the requirement for ‘prior judicial review’ is merely an example, it paves the way for the adoption of procedures and methods that are not necessarily currently included in individual national laws. This overrides Article 30(5) of the EPPO Regulation, which, for context, stipulates that ‘the procedures and modalities for taking the measures shall be governed by the applicable national law’.
Then, as a final step, ‘prior judicial review’ is not at all illustrative anymore in the operative part of the judgment. This states that the justification and adoption of the measure ‘must’ be subject to ‘prior judicial review’ in the Member State of the handling EDP ‘in the event of serious interference with the rights of the person concerned guaranteed by the Charter of Fundamental Rights of the European Union’ (para.79).
Thus, the issue is no longer allocation or illustration but availability. As both parties to this case have provided prior judicial authorisation for the measure in question, the hidden addressees are those Member States that do not currently require ‘prior judicial review’, as defined by the CJEU.
Therefore, the judgment stipulates that Member States should adapt their national laws in accordance with obligations not set out in the Regulation. This is indeed a general requirement, since all Member States will eventually be in a position of having their handling EDP assigning such a measure. Also, legislation will need to be adapted, given that various national laws currently do not require prior judicial review of searches of private homes.
Thus, the Court actively encourages national legislation to address inconsistencies in Union law, rather than European legislation taking action. This could be achieved by establishing common standards in the EPPO Regulation and/or the EIO Directive, or by introducing minimum admissibility rules in a separate directive. One of the initial ramifications of this wording is evidenced by the EPPO College’s reference to the judgment in its 2024 decision, where it states, in general terms: ‘According to the judgment in C-281/22, “prior judicial review” must be available in the Member State of the handling EDP’.
This approach raises concerns about future Union legislation in general, especially as the EPPO represents a mammoth endeavour. It suggests that, once political consensus has been achieved (in this case, the more effective prosecution of PIF crimes and the creation of the EPPO), the EU legislator could be content to halt, while neglecting the necessity of striving for and establishing a coherent and equitable legal framework to support the objective. Instead, it is the national legislator that is entrusted with the responsibility of devising the gaps of Union law for the sake of legal certainty: approximation through selective and ad hoc amendments of national laws rather than (at least partial) harmonisation through EU legislation.
B. The Gavanozov cases: from automatic trust to automatic distrust?
The case of G. K. and Others showed interesting parallels with that of Gavanozov I and II,Footnote 58 the seminal cases concerning the EIO. In this section, I will only highlight those aspects of the cases that are relevant to my subsequent arguments concerning the application of EIOs within EPPO investigations.Footnote 59
Gavanozov I concerned the question of whether a Member State that has issued an EIO is bound by a legal obligation to provide a remedy against this decision itself. This was in conjunction with the general absence of legal remedies under Bulgarian law against decisions ordering a search, seizure, or the hearing of witnesses via videoconference, all of which were ordered under a specific EIO.
Thus, in contrast to the G. K. and Others case, the primary concern here was not the location and scope of judicial authorisation and review but whether it was possible at all to perform a judicial review when applying the Union instrument. The Court’s pronouncement remained silent on the main question and so the Bulgarian court sought further guidance on the compatibility of the current legal situation with EU law and whether the issuance of an EIO was possible under these circumstances.
In summary, the Court then concluded in Gavanozov II that the absence of legal remedies against the investigative measures and the issuance of an EIO constituted a violation of Article 47(1) of the Charter, which also refutes the presumption of mutual trust, thereby precluding the competent authority of a Member State from issuing an EIO (para. 62). Consequently, and of particular significance to this article, Bulgaria was prohibited from issuing EIOs in 2021, pending resolution of the legal situation. As the definitions and types of legal remedy vary greatly among Member States, it is possible that more of them could be prevented from issuing EIOs in the future.Footnote 60
This means that, in contrast to the two-step test of systematic and individual risk assessment established by the CJEU in the Aranyosi and Căldăraru cases,Footnote 61 the systematic absence of effective legal remedies automatically undermines mutual trust and mutual recognition. This occurs without the need to assess the risks within the specific case individually. This decision marks a notable shift from the initial mutual recognition measures, which were based on an almost automatic trust in foreign decisions. These were already limited by the EIO Directive and the joined cases of Aranyosi and Căldăraru. However, in certain scenarios the Gavanozov ruling now permits automatic distrust.
VII. The way ahead?
The subsequent discourse delineates two potential courses of action to address the identified issues. None of these call for an increase in Union competencies, but rather for the existing ones to be amended or applied in such a way that those subject to EPPO cross-border investigations find themselves in a more comparable and stable legal position.
The first proposal recommends that some of the EPPO’s investigative powers be delineated more precisely within the current legal framework. The second proposes that the EPPO employs the EIO Directive and JITs in the absence of tighter harmonisation.
A. Standardisation of certain investigative powers
1. The ongoing relevance of the European Model Rules for the Procedure of the EPPO
The 2012 study European Model Rules for the Procedure of the EPPO (Model Rules)Footnote 62 has devoted considerable attention to the investigative powers of the then nascent EPPO and consequently to the gathering of evidence under Union law. Building upon the original Corpus concepts, it compared the evidentiary standards in 27 EU Member States, focusing on the pre-trial phase. As the subsequent EIO Directive and the EPPO Regulation did not lead to tangible standardisation of evidence laws, the Model Rules remain partly relevant for both the evaluation of these legal instruments and for future EU legislation in this area. The following will highlight the systemic approach to EPPO powers in the study, as well as select ideas that could address certain open issues regarding investigative measures.
The proposed scheme categorised investigative measures into three groups based on the required threshold for their application, the necessity for judicial authorisation, and the possibility of appeal. The first group covered non-coercive measures, like access to registers or questioning of the suspect which did not necessitate written authorisation or review but a reasonable suspicion that an offence under the EPPO’s jurisdiction has been committed.
The second category contained coercive measures that were not considered invasive. These measures were to be based on a reasoned written decision and did not require prior judicial authorisation. However, they could be contested on the grounds of their legality before a ‘European court’. This was derived from Article 263 TFEU, but no such court has yet been established.
Within this category, access to premises and documents (Rule 36) was considered particularly important because the types of offence that fall within the competence of the EPPO often tend to require the taking of samples or the assessment of goods by quality or quantity. Distinguished from ‘search’, this measure allowed the EPPO to enter business premises not open to the public and not considered as private homes. Currently, the EPPO may enter business premises, subject to national law. At the EU level, however, Article 1 of Protocol 7 to the TFEU on the privileges and immunities of the European Union protects the inviolability of the premises and buildings of the Union. They shall be exempt from search, requisition, confiscation, or expropriation unless authorised by the CJEU. The proposed measure in the Model Rules could be an interesting compromise.
The third group covered coercive measures that strongly interfered with fundamental rights and were therefore subject to prior judicial authorisation with validity across the Union. However, in cases of utmost urgency, authorisation would have been possible within 48 hours (Rule 47). The measures in this group were also subject to subsequent challenge concerning their legality before the aforementioned ‘European court’.
One of the measures in this category allowed obtaining information about people’s communications and behaviour in non-public places, including the recording thereof. In line with ECtHR jurisprudence, only audio surveillance was permitted in private homes. At present, the EPPO relies on national legislation and procedures for interception. Such a harmonised approach, for instance concerning subsequent judicial authorisation, could address some of the current practical and legal challenges evidenced in cross-border cases.Footnote 63
Rule 57 governed covert investigations, including technical operations by civilians and informants, under strict requirements and control mechanisms and without the possibility of proactive policing. At present the EPPO may carry out covert investigations, but, as ever, it is subject to national laws. However, the expansion of surveillance powers, particularly the ability to monitor encrypted communications and thus deeply intrude upon people’s digital privacy, remains a highly controversial matter. In Austria, for example, this issue has recently become once again the subject of legislation following the repeal of previous regulations by the Constitutional Court on the grounds that they violated the criteria of proportionality, certainty, and effective legal protection.Footnote 64 In view of the evolving legal landscape, a re-evaluation of the recommendations set out in the Model Rules on this issue may be timely and appropriate.
2. Comparison of the Model Rules with the EPPO Regulation
A glance at the Model Rules immediately highlights a significant difference compared to the EPPO Regulation. While the former took a detailed and systematic approach to investigative measures, the latter deals with the same issues in a single provision (Art. 30). Of course, it is not the number of rules that matters but their content and the legislative approach. The types of measure available for the investigations of the EPPO are similar, but the Regulation leaves the modalities to the applicable national laws. In the Model Rules the key distinction was the need, or otherwise, for judicial authorisation and whether it was possible to appeal against the decision—two factors that were later echoed in the G. K. and Others and Gavanozov cases. The Model Rules set out various specific requirements on these matters, leaving national judges to make the factual decisions. Conversely, the Regulation leaves all this to national legislation.
Moreover, the standardisation in the Model Rules represents a fairer, European scheme, like in the case of confidentiality restrictions, which were proposed for selected measures only, but uniformly. In the Regulation, confidentiality applies to all measures but differently—depending on the respective national laws.
In order to challenge the decisions of the EPPO ex post, the Model Rules advocated a European instance in accordance with Article 263 TFEU, on the grounds that the EPPO is an office of the Union. Understandably, this issue has posed a significant challenge for the legislator, given that no European criminal court has been established to date. However, the current state of affairs, whereby procedural acts of the EPPO are subject to judicial review by the competent national courts in accordance with national law, is highly problematic. In addition to the previously discussed theoretical issues, it is also a challenging and intricate task for national judges, given that EPPO actions may be based on a variety of national laws. Based on what has been presented, this author argues that, should the EU legislator move towards greater convergence, the Model Rules undoubtedly offer some intriguing approaches.
B. EPPO cross-border investigations based on EIOs and JITs
1. Interactions between the EPPO, the EIOs, and the JITs
Prior to the adoption of the Regulation, I argued that, in the absence of adequate common rules, cross-border EPPO cases should be based on the principle of mutual recognition. This was justified by the latitude afforded to national legislation in the draft documents, the safeguards offered by the EIO Directive, and the fact that EIOs would be used in any case, given that the EPPO would be an exercise in enhanced cooperation.Footnote 65
The Office aspires to operate independently, indivisibly, and vertically. It is therefore understandable that the Regulation avoids recourse to the EIO, as it could undermine the European office from taking authoritative decisions in its cross-border investigations, in particular with regard to fundamental rights issues, which could result in national authorities preventing collaboration between officials belonging to the same EU office.Footnote 66
Although Article 86(3) TFEU does allow the adoption of a special scheme for EPPO investigations, it is expected to provide at least the same level of legal certainty as the ‘cornerstone’ of judicial cooperation under Union law: the principle of mutual recognition. However, this is not the case, as legal diversity remains the same whether cross-border investigations are conducted under EIOs or the EPPO. The EIO Directive, however, allows for a more extensive array of grounds for reviewing cooperation.
The question that must be posed once more is therefore as follows: what if the EPPO were to rely on the EIO Directive in its cross-border investigations, despite the Directive’s demonstrated shortcomings?Footnote 67 There are several reasons why this can be advantageous, which I will refer to as ‘arguments’. These will be addressed in further detail below.
Firstly, in the absence of uniform EPPO powers, the EIO could increase the legitimacy of EPPO investigations, particularly with regard to the evidence collected. This is because it would be grounded in an effective EU regulatory instrument, which, given the legal diversity inherent in the field, provides for increased control mechanisms (Argument 1). Secondly, requiring national authorities to apply the EIO in their cross-border investigations, yet deeming the same instrument to be inadequate (‘cumbersome, bureaucratic and time-consuming’Footnote 68) for cross-border EPPO cases, has the potential to create a misleading impression, impeding the legal and political acceptance of the EPPO and undermining the EIO (Argument 2). Thirdly, the EPPO already makes use of the EIO when cooperating with third states and with EU Member States that do not participate in the EPPO but do apply the EIO (Argument 3). Fourthly, in scenarios where the judicial authorisation of a measure depends on fundamental rights considerations, the EIO provides a clearer solution under Article 11(4) of the Directive, offering additional benefits to the EPPO (Argument 4). Finally, the EPPO already relies on EAWs and, in exceptional cases, other mutual recognition measures (Arts. 33 and 31(6)). In this context, the assertion that the EAW contains far fewer grounds for refusal than the EIO no longer holds water. This is owing to the fact that the jurisprudence of the CJEU increasingly allows for the refusal of extraditions on grounds other than those set out in the Framework Decision.Footnote 69 This also applies to EAWs issued within EPPO investigations. Therefore, allowing the use of the EAW but not the EIO, which are both based on the same principle, creates further inconsistency into the EPPO’s cross-border investigation scheme (Argument 5).
The CJEU’s case law, as set out in Gavanozov I and II and G. K. and Others, provides indirect support for these lines of reasoning and corroborates all the above-mentioned arguments. In this context, it is important to remember that in 2021 the Luxembourg court precluded Bulgaria from issuing EIOs. Nevertheless, the country has continued to participate in EPPO investigations.
Both the EIO and the EPPO are Union instruments that aim to facilitate the collection of evidence in cross-border investigations. If EPPO cross-border investigations, as the Court says, do reflect the logic of mutual trust and mutual recognition and Bulgaria is unable to issue EIOs for searches of premises in cross-border cases, how can it be expected to assign such a measure under the EPPO Regulation when the problems with its existing procedural laws remain the same? Even if the law of the assisting EDP would provide for judicial authorisation, considering the CJEU ruling in G. K. and Others, it would apply only to the authorisation and review of the execution of the measure. Moreover, since the Gavanozov rulings specifically relate to EIOs, it is not necessarily apparent whether authorisation will be denied in EPPO investigations on the same grounds. This supports Argument 2 that the EPPO provides for a less safeguarded cooperation scheme than the EIO.
Is the cooperation of the Office with non-EPPO Member States that apply the EIO, like Hungary, thus more stringent than with EPPO Member States, like Bulgaria? Does it not also undermine the legitimacy of both instruments for the participating Member States (Arguments 2, 3, and 4)?
If the EIO provides for higher standards than the EPPO, a European office with vast criminal powers, would applying the EIO to cross-border EPPO cases not strengthen the legitimacy of the Office and trust in the outcome of its cross-border investigations (Argument 1)?
Beside the benefits of using EIOs, the hybrid EPPO regime could also accommodate JITs. The ‘close cooperation’ mechanism in Article 31 of the EPPO Regulation, which requires EDPs to assist and consult each other regularly, can be seen as a similar approach to JITs, albeit with fewer formal guarantees. Joint Investigation Teams are namely based on agreements and the evidence gathered in this way can only be used for specific purposes. This would be suitable; after all, the EPPO’s jurisdiction is also limited to specific offences. Furthermore, the creation of a dedicated JIT platform in the near future is expected to further streamline their operations by facilitating information exchange.Footnote 70 As all EPPO Member States use EIOs and JITs, and the EPPO already relies on these with non-participating Member States and third countries, the transition could be seamless.Footnote 71
2. Additional questions for the evaluation cycle
This second proposal raises some important additional questions for the current and future evaluation cycles. Is there a difference in the efficiency of cooperation between the EPPO and non-EPPO Member States based on whether they apply the EIO? If cooperation with non-EPPO Member States is effective under the EIO Directive, would it also be feasible for cross-border EPPO cases? Are there situations in which non-EPPO Member States refuse to cooperate under the EIO based on fundamental rights considerations, but which would not lead to a refusal among EPPO Member States? Are there situations in which Member States outside the EPPO enable cooperation after resolving human rights considerations under Article 11(4) of the EIO Directive that would have led to the withdrawal of the measure in an EPPO investigation? In other words, are defendants in non-EPPO Member States better off in cross-border EPPO cases than those in EPPO Member States? As part of the Regulation’s assessment, the Commission is invited to address some of these questions.
VIII. Conclusion
The primary objective in establishing the EPPO, which takes a vertical approach to judicial cooperation, was to tackle EU budgetary fraud more effectively than national law enforcement could manage, in both domestic and cross-border cases. This article’s central argument is that the European Union and its member states are both winners in the current situation. While the EU has taken central control of the matter, the Member States still hold sway over their criminal procedures. However, this is a half-hearted victory. The losers seem to be, first and foremost, the defence and the principle of legal certainty in the cross-border setting of the EPPO. This is because, while circumstances relating to legal diversity remain largely unaltered, the EIO Directive provides them with a broader range of procedural safeguards when collecting evidence. Therefore, two possible paths are proposed for consideration under the ongoing and future evaluations of the EPPO Regulation. One calls for the EPPO’s current powers to be more clearly delineated, while the other suggests that the Office apply EIOs and JITs in its cross-border investigations. Although the latter involves combining different cooperation philosophies within the EPPO system, the absence of common rules and a coherent vertical strategy means that this is necessary in order to make EPPO investigations and the gathering of evidence under Union law more consistent. The goal is certainly not to create a uniform European criminal procedure—this is neither feasible nor necessary. Nevertheless, in the interests of all parties concerned, it is essential that a European institution endowed with such substantial powers acts in as fair a manner as possible. Jane Austen may have answered the question of whether this will happen in her classic novel Persuasion, with the line, ‘Time will explain’.
Acknowledgements
This research was funded in whole by the Austrian Science Fund (FWF) [DOI 10.55776/P35507]. For open access purposes, the author has applied a CC BY public copyright license to any author accepted manuscript version arising from this submission. The author wishes to express his gratitude to John R. Spencer, Mirjan R. Damaska, Paul Craig, Hans-Holger Herrnfeld, and Balázs Garamvölgyi for enlightening discussions and valuable comments. As no generative AI was employed in the creation of this article, any remaining errors are my own, and thus human.
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