Author: Florin-Razvan Radu
Committee: EU Institutions Committee
Date: 09/02/2024
The action:
The action for annulment in case T-103/23, Victor Constantin Stan v. EPPO, was the first one before the General Court of the European Union contesting a decision of a Permanent Chamber of the EPPO.
The applicant claimed that the Court should annul the decision of the Permanent Chamber of 9 December 2022, in the EPPO case no. I.000026/2022 and subsequent acts, as unlawful and unfounded. In addition, the applicant requested that, if necessary, the Court should declare the provisions of Article 23(5) of the Internal Rules of Procedure of the EPPO inapplicable, arguing that they are in conflict with the EPPO Regulation.
In support of the action, the applicant submitted, in essence, that the decision of the Permanent Chamber 4, being challenged, was issued in breach of Article 10 of the EPPO Regulation, which, as regards the composition of the Permanent Chamber, requires two permanent members in addition to the Chair. The contested decision was adopted only in the presence of one permanent member in addition to the Chair and to the supervising European Prosecutor who participated in the adoption of the decision.
What conferred a particular significance to this action for annulment was the main legal issue at stake, namely whether a decision of a Permanent Chamber of the EPPO, other than a dismissal decision, could be challenged before the General Court. This issue is directly linked to the interpretation of the nature of these acts of the EPPO from the perspective of their legal effects vis-à-vis third parties. Moreover, this case was important as, in this context, the applicant also challenged, under Article 277 TFEU, the validity of certain provisions from the Internal Rules of Procedure of the EPPO and the legality of Article 42 of the EPPO Regulation itself.
The main findings of the General Court:
In paragraph 27, the Court recalls that “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.”
The Court further notes, in paragraph 28, 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.”
In paragraphs 31-35, the Court developed the reasoning for upholding the first objection of inadmissibility put forward by the EPPO and, consequently, for the dismissal of the action. Thus, in paragraph 31, the Court stated that “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.”
The order:
By Order of 15 December 2023, rendered in case T-103/23, the General Court dismissed the action for annulment of the contested decision of the Permanent Chamber 4 of the EPPO to bring the case to judgment.
The Court upheld the first objection of inadmissibility put forward by the EPPO and dismissed on the ground of lack of jurisdiction of the General Court of the EU to hear and determine it, in light of Article 42(1) of the EPPO Regulation.
As the main action has been dismissed on the ground that the Court lacks jurisdiction to hear and determine it, there was no need to rule, under Article 277 TFEU, 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.
Conclusion:
The order of the General Court in case T-103/23 confirmed that the decisions of the EPPO’s Permanent Chamber are procedural acts that are intended to produce legal effects vis-à-vis third parties, which, therefore, are subject to judicial review by the competent national courts.
In the same time, the Court has also clearly indicated that is only by way of preliminary ruling that the Court of Justice is called upon to rule on the validity of those acts in the light of provisions of EU law and, respectively, on the interpretation or validity of provisions of the EPPO Regulation.