ECLI:EU:C:2026:767

Full text

Provisional text

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 17 September 2026 (1)

Case C‑407/25 [Tersten] (i)

Belgische Staat – Administratie Douane en Accijnzen

Criminal proceedings

against

NV SI,

LM Kft,

LC,

BÜ Kft,

JS,

BZ,

QJF Kft,

LS,

SH Kft,

ZJ,

JZ,

XH,

HS,

3H H & LS GmbH

(Request for a preliminary ruling from the hof van beroep te Brussel (Court of Appeal, Brussels, Belgium)

( Reference for a preliminary ruling – European Public Prosecutor’s Office – Regulation (EU) 2017/1939 – Article 24(2) – Reporting of information to the European Public Prosecutor’s Office – Article 4(3) TEU – Principle of sincere cooperation – Article 27 – Right of evocation – Competence of the national investigating authorities – Evocation by the European Public Prosecutor’s Office during an investigation – Evocation by the European Public Prosecutor’s Office after a prosecution has been brought – Principle of the procedural autonomy of the Member States )

1. In accordance with Regulation (EU) 2017/1939, (2) when a judicial or law enforcement authority of a Member State initiates an investigation in respect of which the European Public Prosecutor’s Office (EPPO) may have competence, it is required to inform the EPPO without undue delay so that the latter may decide whether or not to exercise its right of evocation.

2. The criminal proceedings which gave rise to this reference for a preliminary ruling concern offences falling within the competence of the EPPO. The Belgian customs authorities opened an investigation of those offences when Regulation 2017/1939 had already entered into force(3) but before the EPPO began to perform its investigative and prosecutorial tasks (1 June 2021). (4)

3. As the Belgian authorities did not inform the EPPO at the relevant time of their investigation and judgment in the criminal proceedings has been given at first instance, the referring court asks, essentially, what consequences flow from that failure to notify in relation to those proceedings, which are now at the appeal stage.

I. Legal framework

A. European Union law

1. Regulation 2017/1939

4. Article 4 (‘Tasks’) provides:

‘The EPPO shall be responsible for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices to, criminal offences affecting the financial interests of the Union which are provided for in Directive (EU) 2017/1371 (5) and determined by this Regulation. In that respect the EPPO shall undertake investigations, and carry out acts of prosecution and exercise the functions of prosecutor in the competent courts of the Member States, until the case has been finally disposed of.’

5. In accordance with paragraph 1 of Article 22 (‘Material competence of the EPPO’):

‘The EPPO shall be competent in respect of the criminal offences affecting the financial interests of the Union that are provided for in Directive [2017/1371], as implemented by national law, irrespective of whether the same criminal conduct could be classified as another type of offence under national law …’

6. Article 24 (‘Reporting, registration and verification of information’) provides:

‘1. The institutions, bodies, offices and agencies of the Union and the authorities of the Member States competent under applicable national law shall without undue delay report to the EPPO any criminal conduct in respect of which it could exercise its competence in accordance with Article 22, Article 25(2) and (3).

2. When a judicial or law enforcement authority of a Member State initiates an investigation in respect of a criminal offence for which the EPPO could exercise its competence in accordance with Article 22, Article 25(2) and (3), or where, at any time after the initiation of an investigation, it appears to the competent judicial or law enforcement authority of a Member State that an investigation concerns such an offence, that authority shall without undue delay inform the EPPO so that the latter can decide whether to exercise its right of evocation in accordance with Article 27.

…’

7. In accordance with paragraph 1 of Article 25 (‘Exercise of the competence of the EPPO’):

‘The EPPO shall exercise its competence either by initiating an investigation under Article 26 or by deciding to use its right of evocation under Article 27. If the EPPO decides to exercise its competence, the competent national authorities shall not exercise their own competence in respect of the same criminal conduct.’

8. Article 27 (‘Right of evocation’) provides:

‘1. Upon receiving all relevant information in accordance with Article 24(2), the EPPO shall take its decision on whether to exercise its right of evocation as soon as possible, but no later than [five] days after receiving the information from the national authorities and shall inform the national authorities of that decision. The European Chief Prosecutor may in a specific case take a reasoned decision to prolong the time limit by a maximum period of 5 days, and shall inform the national authorities accordingly.

2. During the periods referred to in paragraph 1, the national authorities shall refrain from taking any decision under national law that may have the effect of precluding the EPPO from exercising its right of evocation.

The national authorities shall take any urgent measures necessary, under national law, to ensure effective investigation and prosecution.

3. If the EPPO becomes aware, by means other than the information referred to in Article 24(2), of the fact that an investigation in respect of a criminal offence for which it could be competent is already undertaken by the competent authorities of a Member State, it shall inform these authorities without delay. After being duly informed in accordance with Article 24(2), the EPPO shall take a decision on whether to exercise its right of evocation. The decision shall be taken within the time limits set out in paragraph 1 of this Article.

…

5. Where the EPPO exercises its right of evocation, the competent authorities of the Member States shall transfer the file to the EPPO and refrain from carrying out further acts of investigation in respect of the same offence.

…

7. Where the EPPO has refrained from exercising its competence, it shall inform the competent national authorities without undue delay. At any time in the course of the proceedings, the competent national authorities shall inform the EPPO of any new facts which could give the EPPO reasons to reconsider its decision not to exercise competence.

The EPPO may exercise its right of evocation after receiving such information, provided that the national investigation has not already been finalised and that an indictment has not been submitted to a court. The decision shall be taken within the time limit set out in paragraph 1.

…’

9. Article 35 (‘Termination of the investigation’) states:

‘1. When the handling European Delegated Prosecutor considers the investigation to be completed, he/she shall submit a report to the supervising European Prosecutor, containing a summary of the case and a draft decision whether to prosecute before a national court or to consider a referral of the case, dismissal or simplified prosecution procedure in accordance with Article 34, 39 or 40. The supervising European Prosecutor shall forward those documents to the competent Permanent Chamber accompanied, if he/she considers it to be necessary, by his/her own assessment. When the Permanent Chamber, in accordance with Article 10(3), takes the decision as proposed by the European Delegated Prosecutor, he/she shall pursue the matter accordingly.

2. If the Permanent Chamber, based on the reports received, considers that it will not take the decision as proposed by the European Delegated Prosecutor, it shall, where necessary, undertake its own review of the case file before taking a final decision or giving further instructions to the European Delegated Prosecutor.

3. Where applicable, the report of the European Delegated Prosecutor shall also provide sufficient reasoning for bringing the case to judgment either at a court of the Member State where he/she is located, or, in accordance with Article 26(4) at a court of a different Member State which has jurisdiction over the case.

…’

10. In accordance with Article 120 (‘Entry into force’):

‘1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2. The EPPO shall exercise its competence with regard to any offence within its competence committed after the date on which this Regulation has entered into force.

The EPPO shall assume the investigative and prosecutorial tasks conferred on it by this Regulation on a date to be determined by a decision of the Commission on a proposal of the European Chief Prosecutor once the EPPO is set up. The decision of the [European] Commission shall be published in the Official Journal of the European Union.

The date to be set by the Commission shall not be earlier than [three] years after the date of entry into force of this Regulation.

…’

B. Belgian law

11. Regulation 2017/1939 was transposed into Belgian law by the wet van 17 februari 2021 houdende diverse bepalingen inzake justitie, (6) which entered into force on 24 February 2021 and inserted a Chapter XXV bis into the Algemene wet inzake douane en accijnzen van 18 juli 1977. (7)

12. Article 285/2(1) of the AWDA is worded as follows:

‘The Administrator General of the Algemene Administratie van de Douane en Accijnzen [(General Administration of Customs and Excise, Belgium)] shall designate at least one official of the General Administration … who shall be in charge of cooperation with the European Delegated Prosecutors, referred to in Article 309/2 of the Gerechtelijk Wetboek [(Judicial Code)], in respect of the minor offences, fraud and serious offences referred to in Articles 281 and 282 and in respect of which the EPPO exercises its jurisdiction under Articles 22, 25, 26 and 27 of Regulation [2017/1939].’

13. Article 285/4(1) of the AWDA provides:

‘The power to initiate and pursue any legal action referred to in Article 281(2) shall be conferred on the official referred to in Article 285/2(1) in respect of the minor offences, fraud and serious offences referred to in Article 281 and in respect of which the EPPO exercises its jurisdiction under Articles 22, 25, 26 and 27 of Regulation [2017/1939].’

II. The facts, the dispute and the questions referred for a preliminary ruling

14. In 2019 and 2020, the Belgian customs authorities opened an investigation in the course of which they found that 26 natural and legal persons had, in 2018 and 2019, committed a number of customs offences when importing goods originating in China, which cleared customs in Brussels and were for consignees in Germany, Spain and Hungary.

15. Reports 19/D/000565, 19/D/000724 and 20/D/000058, relating to customs and excise duties, were completed on 27 November 2019, 1 April 2020 and 15 April 2020 respectively, and sent to the offenders by registered letters.

16. Direct summonses from the General Administration of Customs and Excise were served on the offenders in July and August 2021, after the EPPO assumed its investigative and prosecutorial tasks on 1 June 2021.

17. By judgment of 9 December 2022, in a defended action for some of the defendants and in default for the others, the Nederlandstalige rechtbank van eerste aanleg Brussel (Brussels Court of First Instance (Dutch-speaking), Belgium): (a) under criminal law, acquitted the defendants; and (b) under civil law, ordered some of the defendants to pay the Belgian State import duties in the amount of EUR 143 951.

18. On 6 January 2023, the Belgian State appealed against the lower court’s judgment to the hof van beroep te Brussel (Court of Appeal, Brussels, Belgium).

19. By interim judgment of 5 December 2024, the hof van beroep te Brussel (Court of Appeal, Brussels) ruled that the appeal under criminal law in relation to a number of the defendants and the appeal under civil law concerning the customs debt incurred by those defendants were both declared admissible.

20. Before giving judgment on the Belgian State’s appeal, the hof van beroep te Brussel (Court of Appeal, Brussels) finds that:

– One of the defendants argued that the claims brought under both criminal law and civil law were inadmissible because the Belgian State did not show that it had informed the EPPO of the acts being judged, or that the EPPO had decided that there were no grounds for exercising its right of evocation, in accordance with Article 24 of Regulation 2017/1939.

– The Belgian State argued that the investigation had concluded with the forwarding of the report to the offenders before the EPPO became operational. Accordingly, there was no possibility of evocation in the case for the EPPO and there was no obstacle to the national authorities conducting the criminal prosecution.

– The investigation stage of the case had not ended when the EPPO became operational on 1 June 2021.

– The Belgian State had not submitted any documents to show that, after the investigation into the alleged criminal offences was opened, the competent authorities had informed the EPPO in the manner provided for in Article 24 of Regulation 2017/1939, so that the latter could exercise its right of evocation.

21. Against that background, the hof van beroep te Brussel (Court of Appeal, Brussels) has referred the following questions to the Court of Justice for a preliminary ruling:

‘Are Articles 24, 25, 27 and 35 of Regulation [2017/1939] to be interpreted as precluding, in the circumstances [of the case], the national customs administration and the national Public Prosecutor’s Office from retaining the competence to prosecute the case before the criminal courts?

If the criminal court finds that the case was not communicated to the [EPPO], must it transfer the case back to the competent national authorities so that the latter could then inform the [EPPO] of the investigation and the [EPPO] could, if appropriate, exercise its right of evocation?’

III. Procedure before the Court of Justice

22. The request for a preliminary ruling was received at the Registry of the Court of Justice on 19 June 2025.

23. Written observations were lodged by the Austrian, Belgian, Italian and Polish Governments, and by the European Commission.

24. In accordance with the second paragraph of Article 23 of the Statute of the Court of Justice of the European Union, the Court invited the EPPO to submit in writing any relevant information in its possession relating to the subject matter of the request for a preliminary ruling.

25. On 24 April 2026, the EPPO provided the Court with that information, on which the views of those participating in the hearing, held on 19 May 2026, namely the Belgian and Polish Governments and the Commission, were heard.

IV. Assessment

26. As I stated above, Regulation 2017/1939 entered into force on 20 November 2017 but the EPPO did not assume its investigative and prosecutorial tasks until 1 June 2021. There is no doubt that the alleged offences in this case fall within the EPPO substantive sphere of competence.

27. The referring court regards it as established that the criminal investigation had not finished on 1 June 2021 and that, consequently, the national authority should have informed the EPPO so that the latter could exercise its right of evocation. The referring court adds that, since the national authority did not do so, ‘the question arises as to the consequence of not notifying the [EPPO]’. (8) With a view to resolving that question, the referring court has referred for a preliminary ruling the two questions which I transcribed above.

A. First question referred

28. The referring court asks whether Article 24(2), Article 25(1) and Article 27 of Regulation 2017/1939 preclude the national authorities (the General Administration of Customs and Excise and the Belgian Public Prosecutor’s Office) from retaining the competence to prosecute the case in the circumstances described above.

29. Under Article 25(1) of Regulation 2017/1939, the EPPO may act in two ways: (a) by initiating an investigation of the acts allegedly constituting offences within its competence; or (b) by exercising its right of evocation in relation to investigations already initiated by the national authorities.

30. The EPPO opens direct investigations under Article 26 of Regulation 2017/1939 (9) when it receives relevant information about an offence for which it could be competent and in relation to which no judicial or law enforcement authority of a Member State has initiated an investigation. (10) I shall not discuss that type of procedure of the EPPO, which is outside the scope of the facts now being examined.

31. The EPPO may also exercise its powers by using its right of evocation where an authority of a Member State has initiated ‘an investigation in respect of a criminal offence for which the EPPO could exercise its competence …’ and that authority notifies the EPPO of its investigation (Article 24(2) of Regulation 2017/1939).

32. In order to reply to the first question referred, it is necessary to apply the usual interpretative criteria (grammatical, systematic and purposive) (11) which should shed light on the meaning of Articles 24, 25 and 27 of Regulation 2017/1939.

1. Grammatical interpretation

33. Article 24(2) of Regulation 2017/1939 (12) covers instances in which:

– a judicial or law enforcement authority of a Member State initiates an investigation of an offence in respect of which the EPPO could exercise its competence,

– or in which, at any time after the initiation of an investigation, it appears to that authority that an investigation concerns such an offence. (13)

34. In both instances, the national authority must inform the EPPO so that the latter may decide whether or not to exercise its right of evocation.

35. Article 27(3) of Regulation 2017/1939 provides that the EPPO may exercise its right of evocation after having received information concerning an investigation in progress from other sources. That provision assumes that Regulation 2017/1939 implicitly provides for the possibility that the national authorities concerned have not notified the EPPO.

36. The national authorities must report to the EPPO ‘without undue delay’ any criminal conduct in respect of which it could exercise its competence (Article 24(1) of Regulation 2017/1939). It is my understanding that those authorities must forward that information whenever they become aware of criminal conduct (notitia criminis), whether or not they have formally opened an investigation. The important point, in any event, is that they must notify the EPPO without delay, as soon as they have evidence (or simply suspect) that the acts concern criminal offences within its competence.

37. Once the information has been provided and before the EPPO takes a decision on whether to exercise its right of evocation, the national authority must ‘refrain from taking any decision … that may have the effect of precluding the EPPO from exercising its right of evocation’ (first subparagraph of Article 27(2) of Regulation 2017/1939). (14)

38. If the EPPO exercises its right of evocation, it takes over the investigation already initiated by the national authority, with the result that the competent authorities of the Member States will transfer the file to the EPPO and refrain from carrying out further acts of investigation in respect of the same offence. (15) The EPPO will continue the procedure from the moment when it informs the national authorities that it has exercised its right of evocation.

39. Evocation by the EPPO means that the national authorities cease to have competence. By contrary inference, the national authorities have the power to investigate an offence falling within the EPPO’s competence until such time as the EPPO exercises the right of evocation.

40. A literal interpretation of Article 25(1) and Article 27(5) of Regulation 2017/1939 suggests, therefore, that the national authorities may continue with their proceedings, including prosecution, until such time as the EPPO adopts (and notifies) a decision to exercise its right of evocation in the case.

41. Article 24(2) of Regulation 2017/1939 is silent regarding the specific consequences of non-compliance with the reporting obligation by the national authorities. In particular, that provision does not preclude a national authority from continuing to conduct investigations and bringing a prosecution until such time as the EPPO exercises its right of evocation in the matter.

42. Accordingly, the terms of Article 24(2), Article 25(1) and Article 27 of Regulation 2017/1939 do not preclude a national authority which has initiated an investigation in connection with offences which may be prosecuted by the EPPO from retaining the competence to continue with its investigation and, as appropriate, to bring a prosecution until such time as the EPPO decides to exercise its right of evocation.

2. Systematic interpretation

43. A systematic interpretation of Article 24(2), Article 25 and Article 27 of Regulation 2017/1939 leads to the same conclusion.

44. Regulation 2017/1939 lays down a complex system of shared competences between the EPPO and the national authorities responsible for combatting offences affecting the Union’s financial interests.

45. Within the framework of that system, the EPPO enjoys the right of evocation, that is to say, a right of priority to prosecute offences affecting the Union’s financial interests. (16) The rationale for that priority right is that the EPPO is better able to steer and ensure the consistency of investigations and prosecutions at Union level, in relation to types of criminality which frequently have a transnational dimension.

46. The combination of shared competence and priority competence of the EPPO through the exercise of the right of evocation does not mean that national authorities lack competence to prosecute offences against the Union’s financial interests. Regulation 2017/1939 does not provide that the EPPO alone has competence in that sphere. (17)

47. Indeed, although Regulation 2017/1939 attributes, as a general rule, priority competence to the EPPO, the national authorities retain a subsidiary competence to prosecute offences of that kind.

48. The national authorities, are, in any event, competent in the alternative to prosecute offences against the Union’s financial interests where the EPPO (in respect of an offence which is already under investigation) decides not to exercise its right of evocation under Article 27 of Regulation 2017/1939.

49. In general terms, the EPPO’s actions are subject to a twofold criterion:

– Where the EPPO itself carries out a direct investigation, the principle of legality applies and the EPPO has an obligation to investigate the offences and, where appropriate, bring a prosecution.

– However, where there are ongoing investigations by the national authorities (both where these are reported to the EPPO and where the EPPO becomes aware of them by other means), the EPPO is not obliged to exercise its right of evocation, although it is entitled to do so.

50. It may be inferred from the foregoing and from the perspective of the system as a whole that the national authorities will retain their competence to prosecute offences if the EPPO does not use the evocation mechanism.

51. Therefore, under Article 24(2) of Regulation 2017/1939, national authorities may prosecute an offence falling within the EPPO’s competence, including where they are conducting ongoing investigations which have not been reported to the EPPO, until such time as the EPPO exercises its right of evocation in the case.

52. Article 40(2) of the Internal Rules of Procedure of the EPPO (18) provides that, in addition to the matters of relevance in all investigations, (19) the verification of whether the EPPO should exercise its right of evocation must assess additional factors. (20)

53. Pursuant to Article 9(2) of Regulation 2017/1939, (21) the College of the EPPO adopted the Operational Guidelines on investigation, evocation policy and referral of cases. (22) Annex 2 to those guidelines refers specifically to evocation in cases which national authorities were investigating during the transitional period between the entry into force of Regulation 2017/1939 (20 November 2017) and the date on which the EPPO assumed its investigative and prosecutorial tasks (1 June 2021). That is the situation in the present case.

54. With regard to those cases, Annex 2 to the Operational Guidelines states that, ‘in accordance with the principles of proportionality and necessity, the EPPO should only [exercise its right of evocation] where the exercise of its competence would bring added value to the continuation of the investigation.’

55. The analysis of evocation must also take account of the fact that Article 25(2) and (3) of Regulation 2017/1939 grants national authorities the power to prosecute certain offences affecting the Union’s financial interests.

56. In that connection, under Article 25(2) of Regulation 2017/1939, where offences falling within the scope of Article 22 cause or are likely to cause damage to the Union’s financial interests of less than EUR 10 000, the EPPO may only exercise its competence in certain circumstances. (23) Minor offences against the Union’s financial interests therefore come within the competence of the national authorities unless the EPPO exercises its right of evocation, which it may do only if one of the criteria in Article 25(2) of that regulation is met.

57. Likewise, Article 25(3) of Regulation 2017/1939 provides that the EPPO is to refrain from exercising its competence in respect of any offence falling within the scope of Article 22 if certain criteria are met. (24) Where those criteria are met, and upon consultation with the competent national authorities, the EPPO must refer the case without undue delay to those authorities.

58. The competence of national authorities in respect of offences which meet the criteria set out in Article 25(2) and (3) of Regulation 2017/1939 is an additional argument, of a systematic nature, in favour of those authorities retaining their competence (at least provisionally) until the EPPO decides to exercise its right of evocation in a case.

59. In accordance with the provisions of Regulation 2017/1939 governing the competences of the national authorities and of the EPPO (which are not notable for their clarity), where investigations have already been initiated by national authorities, the turning point, from a systematic point of view, is the time when the EPPO takes its decision on whether or not to exercise the right of evocation.

60. I believe that it is not decisive for those purposes that the EPPO may have been unable to take a decision to exercise its right of evocation in a case, on account of the failure by the national authorities to fulfil the obligation imposed on them under Article 24(2) of Regulation 2017/1939.

61. Admittedly, the information which the national authorities are required to provide is essential for the purposes of enabling the EPPO to exercise the right of evocation (25) if there are no other sources available to it for learning about the notitia criminis. The obligation to send the EPPO that information is an expression of the principle of sincere cooperation, (26) to which Article 5(6) of Regulation 2017/1939 refers.

62. The reporting obligation laid down in Article 24(2) is also related to other similar obligations of the national authorities (Article 24(3) and (5)), which are also underpinned by the principle of sincere cooperation. (27) These are reporting obligations which supplement the obligation laid down in Article 24(2) of Regulation 2017/1939 but apply in situations in which the national authorities have priority competence to prosecute offences against the Union’s financial interests.

63. In any event, I repeat, the important point when it comes to depriving the national authorities of their competence is that the EPPO has exercised its right of evocation. Until then, from the perspective of Articles 24, 25 and 27 of Regulation 2017/1939, those authorities retain their competence.

3. Purposive interpretation

64. It is apparent from recitals 12 and 14 of Regulation 2017/1939 that the objective of setting up the EPPO is to combat more effectively offences affecting the financial interests of the Union. (28)

65. The EPPO is a single body and, despite its decentralised structure, an indivisible European Union body (29) with the power to investigate offences affecting the Union’s financial interests and to bring prosecutions. (30) However, it operates without the existence at European level of a real system of substantive or procedural criminal law. Regulation 2017/1939 includes a limited number of provisions and refers in all other respects to national law. (31)

66. In my opinion, the objective of combatting more effectively offences affecting the Union’s financial interests should lead to an interpretation of Article 24(2) of Regulation 2017/1939 in favour of the view that national authorities may continue with a prosecution in progress in relation to which they have breached their obligation to notify the EPPO (subject to what I shall say in my analysis of the second question referred).

67. The contrary approach (proposing that the breach of that obligation results automatically in a lack of competence of the national authorities to prosecute offences affecting the Union’s financial interests) appears to me to be disproportionate and inconsistent with the aim of Regulation 2017/1939.

68. That would be the case, a fortiori, if the consequences of the infringement of Article 24(2) of Regulation 2017/1939 resulted in the invalidity of the national investigation carried out until that time and in the inadmissibility of the evidence gathered by the national authorities.

69. In any event, if the national authorities of a Member State repeatedly breach their obligation to notify the EPPO under Article 24(2) of Regulation 2017/1939, the Commission could bring an action for failure to fulfil obligations against that Member State. That ensures that the EPPO properly performs its duties in relation to offences against the Union’s financial interests which national authorities have started to investigate.

70. In short, it is my view that Article 24(2), Article 25(1) and Article 27 of Regulation 2017/1939 do not preclude national authorities from bringing a prosecution before the courts of a Member State, even where the EPPO is not informed that those authorities have initiated and pursued the investigation of an offence in respect of which the EPPO could be competent.

B. Second question referred

71. The referring court asks whether, where ‘the criminal court finds that the case was not communicated to the [EPPO]’, that court must transfer the case back to the competent national authorities so that the latter may then inform the EPPO of the investigation so that it may, if appropriate, exercise its right of evocation.

72. The proceedings in which the reference for a preliminary ruling has arisen are at the appeal stage, judgment at first instance having been given at the relevant time. At this precise stage in the proceedings, would it still be possible for the EPPO to exercise its right of evocation?

73. In my view, the basis for the question is that breach of the reporting obligation laid down in Article 24(2) of Regulation 2017/1939 is a procedural defect that is capable of being rectified prior to judgment on the substance. Rectification would specifically entail allowing the EPPO to exercise its right of evocation.

74. The implicit query in the second question referred is whether Articles24(2) and Article 27 of Regulation 2017/1939 preclude the national court from giving judgment on the substance until such time as the EPPO is in a position to adopt a decision in relation to the exercise of its right of evocation.

75. The reply which I propose will rely once again on the interpretation, in accordance with the usual criteria, of Regulation 2017/1939.

1. Literal interpretation

76. The wording of Article 24(2) of Regulation 2017/1939 does not set a precise time limit on the obligation of national authorities to notify the EPPO.

77. Two divergent approaches are possible with regard to that obligation: either it may be fulfilled only during the investigation, or, exceptionally, after the investigation, once the national authorities have brought a prosecution (and, possibly, the courts are hearing the case).

78. Article 24(2) of Regulation 2017/1939 uses the expression ‘at any time after the initiation of an investigation’ to indicate when the national authority is to inform the EPPO. As the Commission observes, that provision does not limit the possibility of reporting the national proceedings strictly to the period of investigation of the facts. It therefore supports the conclusion that, from a literal point of view, there is nothing to preclude the transfer of the information from being made after the prosecution has been initiated.

79. It is true that the general rule must be that the reporting of information by a national authority to the EPPO should take place during the investigation. Article 24(2) states that reporting is to take place ‘without undue delay’ and the involvement of the EPPO during that initial stage may increase the efficiency of the investigation of offences affecting the Union’s financial interests.

80. However, I can find no reasons in the text to preclude the reporting of the information, by way of exception, after the prosecution has been initiated, when the case is pending before the national courts.

81. Moreover, in the case of an investigation carried out by the national authorities in the ‘transitional period’ (when the EPPO had not yet taken up its tasks), there would be all the more reason to allow an exception to the general rule.

82. Nor does Article 27(1) of Regulation 2017/1939 set a precise time limit within which the EPPO must exercise the right of evocation. The EPPO must adopt its decision ‘as soon as possible’ after it receives the relevant information. (32)

83. The flexibility as regards timing is highlighted by confirmation of the fact that the EPPO may also exercise its powers where it initially refrained from exercising the right of evocation but where, in the course of the proceedings, new facts emerge which may give it reasons to reconsider its decision. The national authorities must report this situation to the EPPO and the latter may exercise the right of evocation ‘provided that the national investigation has not already been finalised and that an indictment has not been submitted to a court’ (second subparagraph of Article 27(7) of Regulation 2017/1939).

84. That time limit for the exercise of the right of evocation is confined to the emergence of new facts following a prior refusal by the EPPO to exercise its right of evocation in a case. In that situation, the national investigation must not have ended. Unlike the view put forward by the Belgian Government in its written observations and at the hearing, I can see no grounds for applying that rule by analogy to any other situation, for the purposes of the exercise of the right of evocation. That time limit is applicable solely to the prior notification of the EPPO and not to the exercise of the right of evocation. In those circumstances, if new facts emerge, the EPPO may amend its decision and exercise the right of evocation in the case while the investigation is still underway.

85. The time limit laid down in the second subparagraph of Article 27(7) of Regulation 2017/1939 is not, I repeat, applicable outside the specific situation to which it refers. I do not believe that it is logical to apply it to cases of late reporting (where the case is already at the trial stage and the investigation has ended) in which the EPPO has not previously had the opportunity to take a decision on the right of evocation.

2. Systematic interpretation

86. In my view, a systematic analysis of the provisions of Regulation 2017/1939 confirms the considerations set out above. There are a number of reasons which, from that perspective, support such an approach.

87. First, it may be inferred from Article 4 of Regulation 2017/1939 that the EPPO’s involvement is not restricted to the investigation of offences and instead also includes the prosecution of cases before national courts. (33)

88. The reporting of investigations in progress by national authorities and the EPPO’s right of evocation are key tools for the performance by the EPPO of its tasks. That is why both (reporting and evocation) may be used not only during the investigation stage but also during proceedings before the courts, until such time as final judgment is given in the case.

89. Naturally, when deciding whether to exercise its right of evocation in a case which is at the trial stage, the EPPO will take into account the procedural effects of its involvement and whether that would serve to improve the prosecution of the offence.

90. The EPPO’s involvement in place of the national authorities in the trial stage is different from a mere change of parties to the proceedings. It may be of relevance whether a prosecution is brought by the EPPO or by the national authorities. If the EPPO exercises the right of evocation in the case, there is nothing to prevent it from connecting the case to transnational proceedings (34) and adducing evidence which, one way or the other, under national law, may have a bearing on the case.

91. Secondly, the second subparagraph of Article 13(1) of Regulation 2017/1939 states that ‘the European Delegated Prosecutors shall be responsible for those investigations and prosecutions that they have initiated, that have been allocated to them or that they have taken over using their right of evocation.’ (35) It follows from that provision that European Delegated Prosecutors may exercise the right of evocation in cases which were handled by the national authorities during the investigation stage and after the prosecution was brought, while the trial is pending in those cases before the national courts.

92. Thirdly, Article 27(5) of Regulation 2017/1939 provides that, ‘where the EPPO exercises its right of evocation, the competent authorities of the Member States shall transfer the file to the EPPO (36) and refrain from carrying out further acts of investigation in respect of the same offence.’ In that connection, the ‘file’ may include the acts of investigation and the subsequent procedural acts. The transfer of the file means that the EPPO may, following evocation, use the evidence gathered in it by the national authorities.

93. Fourthly, Article 25(6) of Regulation 2017/1939 lays down rules for resolving conflicts of competence between the EPPO and national authorities. Positive or negative conflicts of competence are to be resolved by a national court, (37) while the system contains no time limits in that regard.

94. Lastly, the powers which Article 35(1) of Regulation 2017/1939 grants to European Delegated Prosecutors (38) do not, contrary to what the referring court appears to suggest, mean that the EPPO may bring a prosecution only if it has previously carried out the investigation itself.

95. In my opinion, Article 35(1) of Regulation 2017/1939 governs the closure of the investigation stage when the investigation has been handled by the EPPO, which always occurs in the case of a direct investigation and where reporting and evocation have taken place before prosecution. However, that provision does not prejudge the time limit for reporting to the EPPO or for the EPPO to exercise the right of evocation in (exceptional) cases in which the case has already been referred to the national court with jurisdiction to give judgment on it.

3. Purposive interpretation

96. As I stated above, the EPPO was created with the objective of combatting more effectively offences affecting the Union’s financial interests.

97. That aim is better served by an interpretation of the applicable provisions of Regulation 2017/1939 which supports the EPPO’s involvement on an exceptional basis (and prior notification by national authorities) outside the investigation stage, when the case is pending before the national courts.

98. Admittedly, it is advisable for the EPPO to become involved in relation to offences falling within its competence as soon as possible during the investigation stage, once the national authorities have realised that the facts may constitute offences against the Union’s financial interests.

99. Once the prosecution has been brought, the reporting of information to the EPPO may also be conducive to implementation of the objective of Regulation 2017/1939. (39)

100. After receiving information during the trial stage, the EPPO must decide swiftly (within five days) whether to exercise the right of evocation in the case, under Article 27(1) of Regulation 2017/1939, with the possibility of an extension for a further five days. That possibility does not negatively affect the speed of the legal proceedings and, on the contrary, could lead to better administration of justice if the EPPO provides additional information during the trial stage, taking account of its expertise in the field of transnational organised crime against the Union’s financial interests.

101. I do not disregard the fact that the non-harmonisation of the criminal procedural laws of the Member States could create differences between those laws. Nor do I treat lightly the difficulties entailed by the replacement of the national authorities by the EPPO during the trial stage, especially in appeal or cassation proceedings. Those difficulties may be considerable when it comes to the admissibility of evidence or the continued existence of the prosecution initiated by the national authority having competence up to that point.

102. The EPPO must bear in mind those difficulties when it comes to deciding whether or not to exercise its right of evocation and take over the prosecution only if there are no procedural obstacles which would impede the success of its claims. If, under national procedural law, the replacement of the national authorities by the EPPO were to create intractable problems at domestic level or seriously harm the conduct of the prosecution itself, (40) the EPPO would have to consider whether evocation is appropriate.

4. Historical interpretation

103. During the legislative procedure leading to the adoption of Regulation 2017/1939, the Council added this sentence to the Commission’s proposal: (41) ‘The [EPPO] may exercise the right of evocation at any time during the investigation.’

104. Following intense debate, that time limit was removed. (42) I am inclined to think that its removal highlights the legislature’s intention to enable the EPPO to exercise the right of evocation without any temporal restrictions, that is, outside the investigation stage. That is the interpretation which the Commission, as it stated at the hearing, deduces from the negotiations which led to the adoption of Regulation 2017/1939.

105. I do not think that it is logical to consider that the removal of the time limit can be interpreted as an attempt to leave the matter open in that respect, or that it was based on the assumption that that limit could be readily deduced from other provisions of Regulation 2017/1939.

5. The structure of the EPPO’s involvement after a prosecution has been brought and the penalty for failure to comply with the reporting obligation incumbent on the national authorities

106. If the approach which I propose is accepted (that is, that the national authorities may, by way of exception, transmit information to the EPPO and the EPPO may exercise its right of evocation even after the national investigation has ended), the next step is to establish how it is implemented.

107. Regulation 2017/1939 does not specify the procedural routes for providing information to the EPPO and for the adoption by the EPPO of a decision on whether or not to exercise its right of evocation after the investigation has ended and the prosecution has been initiated. Nor does it govern the consequences of infringement of (failure to comply with) the obligation of national authorities to notify the EPPO.

108. Failure to comply with that obligation undermines the EPPO’s competence to intervene in proceedings relating to offences against the Union’s financial interests. Naturally, it affects the EPPO’s powers but may also have a bearing on the rights of persons accused of those offences.

109. Against that background, I agree with the view which the EPPO set out in its submission of 24 April 2026, sent to the Court in response to the latter’s request.

110. In that document, the EPPO states, in essence, that, given the lack of express provisions of EU law on the consequences of infringement of Article 24 of Regulation 2017/1939, and in the light of the system of shared competence laid down by the legislature with the aim of protecting the Union’s financial interests,

– failure to report a case to the EPPO should not, by itself, negate the legality of a prosecution brought by a national authority;

– the procedural penalty for breach of the obligation to report to the EPPO a case falling within its competence must be sought in the applicable national law, in accordance with the principle of the procedural autonomy of the Member States (43) and Article 5(3) of Regulation 2017/1939; (44)

– notification, however late, to the EPPO could constitute an effective remedy for the infringement of Article 24(2) of Regulation 2017/1939. It is the Commission’s responsibility to adopt all the appropriate measures, where necessary, if national law does not provide for sufficient mechanisms to guarantee the timely notification of the EPPO.

111. In effect, it is necessary to refer to domestic law to determine which mechanism would enable notification of the EPPO, (45) once criminal proceedings have reached the trial stage after a prosecution has been brought by the national authorities. Also under domestic law (interpreted in the manner that is most compatible with Regulation 2017/1939), it will be necessary to specify the means enabling the EPPO, where appropriate, to exercise the right of evocation and continue with the prosecution in place of the national authorities.

112. If the EPPO is notified and decides not to exercise its right of evocation, the criminal proceedings will continue with the national authority which brought the prosecution. However, if the EPPO exercises its right of evocation in the case, the national authority must be replaced using the procedures available under domestic law.

113. In that connection, the principle of effectiveness with regard to the application of Regulation 2017/1939 requires that a substitution must neither impede nor delay the prosecution of offences against the Union’s financial interests: the aim of Regulation 2017/1939 is, specifically, to make the prosecution of those offences more efficient.

114. Furthermore, if the EPPO exercises its right of evocation, it must do so without undermining the rights of those who are parties to the ongoing proceedings. (46) It must, therefore, consider the extent to which its involvement at that stage of the proceedings affects the defendants’ right of defence, which the EPPO must respect in accordance with national procedural provisions: its decisions concerning the evidence, the classification of the facts, the amount of the penalties, and the other aspects of the prosecution, where evocation takes place during the trial stage, may not be to the detriment of the rights granted to the defendants under national law.

115. If continuation of the prosecution by the national authority is more efficient than the replacement of that authority by the EPPO, the latter must consider whether it should refrain from exercising its right of evocation in the case. I believe that, once a prosecution has been brought and the case is pending before the national courts, evocation should be used only on an exceptional basis.

116. In short, Article 24(2) and Article 27 of Regulation 2017/1939 must be interpreted as meaning that the national authorities are required to notify the EPPO of ongoing proceedings relating to offences in respect of which the EPPO may exercise its competence, if those authorities have not previously informed the EPPO of their investigations. In those circumstances, the EPPO may still exercise its right of evocation.

V. Conclusion

117. In the light of the foregoing considerations, I propose that the reply to the hof van beroep te Brussel (Court of Appeal, Brussels, Belgium) should be:

Article 24(2), Article 25(1) and Article 27 of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office

must be interpreted as meaning that

– they do not preclude national authorities from bringing a prosecution before the courts of a Member State, even where the European Public Prosecutor’s Office is not been informed that those authorities have initiated and pursued the investigation of an offence in respect of which the European Public Prosecutor’s Office could be competent;

– the national authorities are required to notify the European Public Prosecutor’s Office of ongoing proceedings relating to offences in respect of which the European Public Prosecutor’s Office may exercise its competence, if those authorities have not previously informed the European Public Prosecutor’s Office of their investigations. In those circumstances, the European Public Prosecutor’s Office may still exercise its right of evocation.

1 Original language: Spanish.

i The name of this case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2 Council Regulation 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).

3 Regulation 2017/1939 entered into force on 20 November 2017.

4 In accordance with Article 1 of Commission Implementing Decision (EU) 2021/856 of 25 May 2021 determining the date on which the European Public Prosecutor’s Office assumes its investigative and prosecutorial tasks (OJ 2021 L 188. p. 100; corrigendum in OJ 2021 L 190, p. 101).

5 Directive of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law (OJ 2017 L 198, p. 29).

6 Law laying down miscellaneous provisions relating to justice (Belgisch Staatsblad, 24 February 2021, p. 16822) of 17 February 2021.

7 General Law on Customs and Excise Duties (Belgisch Staatsblad, 21 September 1977, p. 11476) of 18 July 1977 (‘the AWDA’).

8 Order for reference, section 4, point 5.3.

9 Article 26(1) of Regulation 2017/1939 provides that the EPPO is to initiate an investigation where ‘there are reasonable grounds to believe that an offence … is being or has been committed’.

10 Article 24(1) of Regulation 2017/1939 provides that the institutions, bodies, offices and agencies of the Union and the authorities of the Member States competent under applicable national law are without undue delay to report to the EPPO any criminal conduct in respect of which it could exercise its competence in accordance with Article 22, Article 25(2) and (3).

11 According to settled case-law, it follows from the need for a uniform application of EU law and the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union, having regard not only to the wording of that provision but also to the context in which it occurs and the objectives pursued by the rules of which it is part (judgments of 17 November 1983, Merck, 292/82, EU:C:1983:335, paragraph 12; of 30 April 2024, M.N. (EncroChat), C‑670/22, EU:C:2024:372, paragraph 109; and of 8 April 2025, European Public Prosecutor’s Office (Judicial review of procedural measures), C‑292/23, EU:C:2025:255, paragraph 51).

12 Recitals 51 and 52 of Regulation 2017/1939 assist with understanding the scope of that provision.

13 Article 26(2) of Regulation 2017/1939 lays down the reciprocal obligation of the EPPO to inform the reporting authority of its decision to conduct the investigation.

14 The duty to refrain from taking any decisions does not preclude the national authority from taking ‘any urgent measures necessary, under national law, to ensure effective investigation and prosecution’ (second subparagraph of Article 27(2) of Regulation 2017/1939).

15 Article 27(5) of Regulation 2017/1939.

16 According to recital 58 of Regulation 2017/1939, ‘the competence of the EPPO regarding offences affecting the financial interests of the Union should, as a general rule, take priority over national claims of competence’.

17 The final wording of Regulation 2017/1939 did not include the Commission’s initiative that the EPPO should be granted exclusive competence for the prosecution of offences against the Union’s financial interests. See the proposal for a Council Regulation on the establishment of the European Public Prosecutor's Office (COM (2013) 534 final) of 17 July 2023, Article 11(4) of which was worded: ‘The [EPPO] shall have exclusive competence to investigate and prosecute criminal offences against the Union’s financial interests.’

18 Rules of Procedure adopted by Decision 3/2020 of 12 October 2020 of the College of the European Public Prosecutor’s Office (EPPO) and amended and supplemented by Decision 85/2021 of 11 August 2021 and Decision 26/2022 of 29 June 2022 of the College of the EPPO (OJ 2023 C 181, p. 1).

19 In accordance with Article 40(1) of the Internal Rules of Procedure of the European Public Prosecutor’s Office, ‘the verification for the purpose of initiating an investigation shall assess whether: (a) the reported conduct constitutes a criminal offence falling under the material, territorial, personal and temporal competence of the EPPO; (b) there are reasonable grounds under the applicable national law to believe that an offence is being or has been committed; (c) there are obvious legal grounds that bar prosecution; (d) where applicable, the conditions prescribed by Article 25(2), (3) and (4) of the Regulation are met.’

20 Article 40(2) of the Internal Rules of Procedure of the European Public Prosecutor’s Office lists these as the maturity of the investigation; the relevance of the investigation with regard to ensuring the coherence of the EPPO’s investigation and prosecution policy; the cross-border aspects of the investigation; and the existence of any other specific reason which suggests that the EPPO is better placed to continue the investigation.

21 The College of the EPPO may take ‘… decisions on strategic matters, and on general issues arising from individual cases, in particular with a view to ensuring coherence, efficiency and consistency in the prosecution policy of the EPPO throughout the Member States …’

22 Decision of the College of the European Public Prosecutor’s Office of 21 April 2021 adopting operational guidelines on investigation, evocation policy and referral of cases, amended by Decision 007/2022 of 7 February 2022 and by Decision 026/2022 of 29 June 2022 of the College of the EPPO; available at: https://www.eppo.europa.eu/document/download/e4d8fbeb-254f-491d-aba2-286990f313c9_es?filename= 2021.029-2022.026_Amended_Op_Guidelines_on_Investigation_Evocation_Referral_EN.pdf.

23 Where (a) the case has repercussions at Union level which require an investigation to be conducted by the EPPO; or (b) officials or other servants of the Union, or members of the institutions of the Union could be suspected of having committed the offence.

24 That provision applies if: ‘… (a) the maximum sanction provided for by national law for an offence falling within the scope of Article 22(1) is equal to or less severe than the maximum sanction for an inextricably linked offence as referred to in Article 22(3) unless the latter offence has been instrumental to commit the offence falling within the scope of Article 22(1); or (b) there is a reason to assume that the damage caused or likely to be caused, to the Union’s financial interests by an offence as referred to in Article 22 does not exceed the damage caused, or likely to be caused to another victim. …’ However, Article 25(4) provides that the EPPO may, with the consent of the competent national authorities, exercise its competence if it appears that the EPPO is better placed to investigate or prosecute.

25 Recital 53 of Regulation 2017/1939 states that ‘compliance with that reporting obligation is essential for the EPPO’s good functioning and should be interpreted broadly to ensure that national authorities report cases where the assessment of some criteria is not immediately possible (for example the level of damage or the applicable penalty). …’

26 In addition, recital 14 of Regulation 2017/1939 states that both the EPPO and the competent national authorities should support and inform each other with the aim of efficiently combatting the crimes falling under the competence of the EPPO.

27 Article 24(5) of Regulation 2017/1939: ‘The EPPO shall also be informed, in accordance with paragraphs 1 and 2 of this Article, of cases where an assessment of whether the criteria in Article 25(2) are met is not possible.’ That provision concerns offences of an amount below EUR 10 000. Article 24(3) imposes an obligation on national authorities to inform the EPPO when they have initiated an investigation in respect of a criminal offence as defined in Article 22 and they consider that the EPPO could, in accordance with Article 25(3), not exercise its competence (where national law lays down a penalty equal to or more severe for an inextricably linked offence or where the damage caused to another victim exceeds the infringement of the Union’s financial interests).

28 Judgment of 21 December 2023, G.K. and Others (European Public Prosecutor’s Office) (C‑281/22, EU:C:2023:1018, paragraph 65).

29 Article 8(1) of Regulation 2017/1939.

30 Article 86(2) TFEU and Article 4 of Regulation 2017/1939.

31 Article 5(3) of Regulation 2017/1939.

32 ‘… but no later than [five] days after receiving the information from the national authorities and shall inform the national authorities of that decision’. The same time limits apply where the EPPO becomes aware of an ongoing national investigation by different means, that is to say, without prior notification from the national authorities, in accordance with Article 27(3) of Regulation 2017/1939.

33 Recital 31 of Regulation 2017/1939: ‘The functions of prosecutor in competent courts apply until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the offence, including, where applicable, sentencing and the resolution of any legal action or remedies available until that decision has become definitive.’

34 Possibly, it could also propose that jurisdiction be declined in favour of the courts of another Member State, based on the place which constitutes the focus of the criminal activity or, if several connected offences have been committed, the place where the bulk of the offences has been committed, within the meaning of Article 26(4) of Regulation 2017/1939.

35 Emphasis added.

36 Emphasis added.

37 It is for Member States to specify the national authority which will decide on conflicts regarding the attribution of competence.

38 ‘When the handling European Delegated Prosecutor considers the investigation to be completed, he/she shall submit a report to the supervising European Prosecutor, containing a summary of the case and a draft decision whether to prosecute before a national court or to consider a referral of the case, dismissal or simplified prosecution procedure in accordance with Article 34, 39 or 40.’

39 Even if the EPPO decides not to exercise the right of evocation, the notification from the national authorities may have positive implications for the prosecution of other offences against the Union’s financial interests which the EPPO is investigating.

40 Depending on the situation, there is a possibility that problems may arise in relation to limitation periods or the application of the non bis in idem rule.

41 Article 19(3), in fine, of the proposal for a Regulation contained in the Council document of 14 May 2014 (9478/1/14 REV 1); reproduced in the first sentence of Article 21a(4) of the amended proposal for a Regulation, which is contained in the Council document of 28 November 2014 (15862/1/14 REV 1).

42 Council document of 26 May 2015 (8316/3/15 REV 3).

43 According to settled case-law, in accordance with that principle, it is for the domestic legal system of each Member State to lay down procedural rules governing the remedies necessary to ensure effective legal protection for individual parties in the fields covered by EU law, provided, however, that those rules are not, in situations governed by EU law, less favourable than in similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). Judgments of 21 December 2021, Randstad Italia (C‑497/20, EU:C:2021:1037, paragraphs 56 and 58), and of 8 April 2025, European Public Prosecutor’s Office (Judicial review of procedural acts) (C‑292/23, EU:C:2025:255, paragraph 82).

44 In accordance with Article 5(3) of Regulation 2017/1939, ‘national law shall apply to the extent that a matter is not regulated by this Regulation.’

45 Under Belgian law, the obligation to notify the EPPO in accordance with Article 24(2) of Regulation 2017/1939 appears to lie with the procureur du Roi, le procureur général ou le procureur fédéral, as referred to in Article 156/1(3) of the Judicial Code, to which the observations of the Belgian Government and the Commission refer, or with the official of the General Administration of Customs and Excise referred to in Article 285/2(1) of the General Law on Customs and Excise Duties, cited by the referring court.

46 Under Article 5(1) of Regulation 2017/1939, ‘the EPPO shall ensure that its activities respect the rights enshrined in the Charter [of Fundamental Rights of the European Union].’

Opinion of Advocate General Campos Sánchez-Bordona delivered on 17 September 2026.###

Full text

Continue your research in ChatGPT or Claude