The proposal for Regulation 2017/1939 establishing the European Public Prosecutor’s Office (The EPPO Regulation) was criticized for completely excluding the Court of Justice of the European Union (CJEU) from judicial review of decisions on forum of prosecution by the EPPO, an EU body. The system of judicial review under the EPPO Regulation has improved significantly relative to its initial proposal, by enabling national courts to refer preliminary questions to the CJEU. Despite this, several issues remain. This article examines whether the limitations imposed by the EPPO Regulation on the use of the action for annulment procedure laid down in Article 263 TFEU comply with EU primary law. More specifically, whether it complies with effective judicial protection as protected under Article 47 CFR, and the legal basis for the EPPO’s system of judicial review, Article 86(3) TFEU. We argue that the preliminary reference procedure is not effective enough in remedying the limited access to the action for annulment procedure to reliably safeguard the defendants’ right to effective judicial protection. To the extent that the current system for judicial review under the EPPO Regulation is at odds with the Article 47 CFR, the EU legislator did not have the competence to enact it under Article 86(3) TFEU. This article proposes that in order to circumvent the unlawful restrictions imposed by the EPPO Regulation, defendants could and should make use of the action for annulment procedure to contest the EPPO’s choice of forum.

The choice in the EPPO Regulation to establish the material scope of the EPPO by referring to the provisions in the PIF Directive “as implemented by national law” implies that the exact scope of competence of this first European investigating and prosecuting authority finally arises out of national legislations. As a result, the latter becomes decisive in setting the boundaries of individual responsibility in the concrete case. As it was in the past under the force of the third pillar instruments, the level and quality of implementation at national level remain crucial. The first report of the Commission on the implementation of the PIF Directive did raise several critiques in this respect. As a matter of fact, a significant number of infringement proceedings have been launched by the Commission following the worrying findings of the Implementation Report on the PIF Directive.

The legal framework under which the European Public Prosecutor’s Office (EPPO) is called to operate is particularly complex, given the need for this body to exercise its functions in the legal systems of the Member States, applying both Union and national law. While this may justify the many references to national law contained in the EPPO’s founding Regulation (2017/1939), several among these references present relevant interpretative issues, and may in some cases even have a misleading effect. The article aims at showing examples of these different scenarios. It also touches briefly on the relevance of soft law in the legal framework of the EPPO.