Author: Marta Ramat
Committee: Academic Committee
Date: 24/01/2024

On 15 December 2023 and on 16 January 2024, the General Court issued two decisions, both in the form of a reasoned Order, in cases filed against the EPPO.

Albeit based on different provisions of Regulation (EU) 2017/1939 (‘the EPPO Regulation’), these two decisions address similar legal issues, both dealing with the scope of CJEU jurisdiction on the validity of EPPO acts, in cases brought pursuant to Article 263 TFEU.

In the former case (T-103/23, Victor-Constantin Stan v. European Public Prosecutor’s Office), the General Court was seized by Mr. Stan, seeking the annulment of the decision of Permanent Chamber No. 4 to bring his case to judgment. That decision was taken as a consequence of an EPPO investigation over fraud affecting the financial interests of both the EU and Romania.

This case is a crucial one, as it is the first one to provide clarification on the scope of CJEU jurisdiction under Article 42 of the EPPO Regulation. Pursuant to that provision, procedural acts of the EPPO intended to produce legal effects vis-à-vis third parties shall, as a rule, be impugned before national courts (Article 42(1)). The CJEU may only have jurisdiction upon preliminary ruling on the validity of such acts, if contested directly on the basis of EU law (Article 42(2)(a)). On the contrary, the CJEU exercises its jurisdiction on actions for annulment where the impugned EPPO act is a decision to dismiss a case (Article 42(3)) or a non-procedural act (Article 42(8)). Precisely by recalling the wording of these provisions, and clarifying that it is in no way ambiguous, the General Court dismissed Mr. Stan’s action for annulment, on grounds that the EU courts lack jurisdiction to rule on it.

At a first reading, this Order is interesting in two respects. First, the General Court took the opportunity to expressly underline that the Applicant may still challenge the Permanent Chamber’s decision before a national court and, in that context, also claim the invalidity of Article 42(1) itself, thereby leading the CJEU to rule on that point upon preliminary ruling. Moreover, it can be clearly inferred that a decision to bring the case to judgment is subject to judicial scrutiny – albeit not before the CJEU – which is instead controversial in respect of decisions to initiate an investigation (Mitsilegas, 2021).

The second Order was issued in Case T-46/23, Eva Kaili v. European Parliament and the European Public Prosecutor’s Office. For the sake of clarity, it is important to highlight that this case bears no relation – at least to the present state of our knowledge – to the so-called Quatargate scandal, but rather it stems from an EPPO investigation over alleged misuse of parliamentary allowances. In that context, the European Chief Prosecutor asked the EP to lift Ms. Kaili’s parliamentary immunity, as per Article 29(2) of the EPPO Regulation. The EP President subsequently decided to communicate that request to the plenary and to refer it to the Legal Affairs Committee. In the case under analysis, Ms. Kaili sought the annulment of both the Chief Prosecutor’s request and the EP President’s decision.

In its Order, the General Court recalled that only acts with binding legal effects on the applicant and which are capable of producing a distinct effect on his or her legal situation may be challenged under Article 263 TFEU. Hence, intermediate procedural measures may only be contested if they have such effects, and if they represent the outcome of an autonomous special procedure, distinct from the main one. In the framework of the procedure for lifting parliamentary immunity, neither the Chief Prosecutor’s request nor the EP President’s decision fulfil those requirements, in the General Court’s view. Hence, Ms. Kaili’s action was dismissed as inadmissible. It stems from this Order that CJEU jurisdiction under Article 263 TFEU is, at least in principle, subject to the same conditions as in all other areas, despite the EPPO’s specificities.

To concludes, the EPPO received two additional presents between last December and the beginning of the New Year, along with the Court’s judgment in case G.K. and Others (already commented on this blog).


Committee: Academic Committee
Chairs: Alejandro Hernandez-Lopez, Ilaria Sticchi, Enrico Traversa


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