Defence in EPPO Proceedings

By Dr Julius Hagen, Attorney at Law (Germany)

EPPO investigations

An investigation by the European Public Prosecutor’s Office (EPPO) combines European supervisory structures with German criminal procedure. RATH HAGEN defends individuals and advises companies in German white-collar criminal proceedings with domestic and cross-border elements.

Before any statement is considered, counsel should establish the client’s procedural status, the alleged offence, the handling European Delegated Prosecutor, the entities involved and any current measures. Records can then be preserved, communications controlled and time-sensitive remedies assessed.

When does the European Public Prosecutor’s Office have jurisdiction?

The EPPO is not a general European prosecution service. Its mandate concerns criminal offences affecting the European Union’s financial interests. The principal framework comprises Articles 22 and 25 of Regulation (EU) 2017/1939, the PIF Directive and the applicable national criminal law.

Its jurisdiction may cover subsidy fraud involving EU funds, corruption or misappropriation affecting the EU budget, laundering the proceeds of such offences and inextricably linked offences. For VAT offences covered by the PIF Directive, Article 22 requires a connection with the territory of at least two Member States and total damage of at least EUR 10 million.

The EPPO has no jurisdiction over national direct taxes. Whether it exercises jurisdiction in another case may depend on the loss, place of conduct, persons involved, competing losses and the centre of gravity of connected allegations. The decision by which the EPPO assumed the case should therefore be reviewed separately from the underlying facts.

How does an EPPO case differ from a national investigation?

The EPPO operates at central and decentralised levels. European Delegated Prosecutors conduct investigations in the Member States, while European Prosecutors and Permanent Chambers supervise and direct the cases. The EPPO Regulation takes precedence; otherwise, the national law of the handling European Delegated Prosecutor generally applies.

For each measure, the defence records who ordered, assigned and executed it, which court has jurisdiction and which deadline applies. The investigation file, translations, data sets and parallel contacts with authorities are brought into a single chronology.

Searches, seizures and digital evidence

An ongoing search should not be physically obstructed. Its scope and conduct may be documented, objections recorded and potentially privileged defence or lawyer material identified. Employees should not discuss the substance of the allegation with investigators.

For a company, a prepared team of one internal contact, criminal counsel and responsible IT staff should coordinate the response. Our Company Search in Germany page provides further guidance on documentation, data access and seizure.

Cross-border measures and judicial review

For cross-border investigation measures, the Court of Justice generally divides judicial review between the Member States involved. Under C-281/22, courts in the Member State of the handling European Delegated Prosecutor review the adoption and justification of the measure. Review in the assisting Member State generally concerns its enforcement. Measures involving a serious interference with fundamental rights require prior judicial review in the handling Member State.

Procedural acts capable of affecting the legal position of the person challenging them must be amenable to effective judicial review. In C-292/23, the Court held that a direct action is not always required, provided that effective review, including an incidental review where appropriate, safeguards the person’s rights and freedoms.

The defence should therefore record the order, assignment, national execution decision, translations, service and appeal deadlines separately. This identifies the level at which jurisdiction, proportionality or procedural rights can be tested.

Defence strategy in EPPO proceedings

The factual and loss analysis follows the allegation. In funding cases, the grant conditions, use of funds, notifications of changes and communications with the funding authority are central. In VAT cases, goods and payment flows, individual knowledge and the role of each participant are reconstructed separately.

EPPO jurisdiction is examined in parallel: What predicate offence is alleged, how is the loss calculated, which states and entities are involved, and which national allegations are said to be inextricably linked?

A defence statement is considered after sufficient access to and analysis of the evidence. Depending on the case, counsel may correct a discrete factual misconception, submit records in a controlled manner or initially challenge coercive measures and procedural decisions. The objective may be discontinuance, limiting allegations or persons, lifting measures, or preparing effectively for indictment and trial.

Companies: manage criminal proceedings and commercial consequences together

Companies may face confiscation and corporate-fine exposure as well as consequences under funding, tax and procurement rules. Frozen accounts or assets require a separate assessment of the secured amount, ownership and liquidity impact. Our page on asset freezing and confiscation provides detailed guidance.

Corporate representation and individual defence are organised separately and coordinated where their interests intersect. The same applies to internal investigations: interviews, processed data and reports should not pass into other proceedings without legal review.